Federal law and guidance on this subject should be reviewed together with this section.
Author: Susan A. P. Woodhouse, Littler
- Generally, family and medical leave laws require covered employers provide eligible employees with job-protected leaves of absence for qualifying reasons. The primary federal law governing leave is the Family and Medical Leave Act (FMLA). See Family and Medical Leave, Generally.
- In addition to the federal laws, Oregon employers may also be subject to the Oregon Family Leave Act (OFLA). The OFLA allows eligible employees of covered employers to take protected leave because of their own or a close family member's serious health condition, as well as sick child leave, parental leave for the birth or placement for foster care or adoption of a child and pregnancy disability leave. See Oregon Family Leave Act.
- An employee's eligibility depends upon the type of leave he or she is seeking. See Eligible Employees.
- Eligible employees may take OFLA leave for their own serious health condition. This form of leave includes leave because of the employee's pregnancy-related inability to work. See Length and Purpose of Leave.
- An employer may require an employee on leave to report periodically to the employer on his or her status and intention to return. See Notice and Certification.
- An Oregon employer may transfer an employee who is on OFLA intermittent leave or a reduced work schedule, or who is recovering from a serious health condition, to an alternate position to accommodate the leave or recovery from the serious health condition only if the transfer is temporary and voluntary, and the alternative job has equivalent pay and benefits. See Intermittent or Reduced Schedule OFLA Leave.
- Employees are entitled to up to 14 days of unpaid leave when the employee's military spouse or domestic partner has been called to active duty. Leave may be taken before deployment and when the servicemember is on leave from deployment. See Oregon Military Family Leave Act.
- Oregon employers must provide sick and safe time to employees. See Oregon Paid Sick and Safe Time.
Family and Medical Leave, Generally
Generally, family and medical leave laws require covered employers provide eligible employees with job-protected leaves of absence for qualifying reasons. The primary federal law governing leave is the Family and Medical Leave Act (FMLA). Employers covered under the FMLA may also be required to provide leave under the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA).
In addition to the federal laws, Oregon employers may also be subject to the Oregon Family Leave Act (OFLA). The OFLA allows eligible employees of covered employers to take protected leave because of their own or a close family member's serious health condition, as well as sick child leave, parental leave for the birth or placement for foster care or adoption of a child and pregnancy disability leave.
Some of the key differences between the OFLA and the FMLA include eligibility requirements, the definition of a family member and the qualifying reasons for leave.
Employers should note that leave required by a state or local law is not taken into account when determining the amount of leave provided by an employer for federal tax credit purposes under the federal tax reform law.
Under the Defense of Marriage Act (DOMA), only opposite-sex married couples were allowed to take FMLA leave to care for their spouse. Initial rulings by the Supreme Court and rules issued by the Department of Labor on this topic provided FMLA rights to same-sex spouses based on whether a state recognized same-sex marriage. The definitive decision came when the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Accordingly, same-sex marriage is legal nationwide, and couples lawfully married in any state, including Oregon, are entitled to FMLA spousal leave benefits.
The OFLA's definition of spouse includes individuals who have lawfully established a civil union, domestic partnership or similar relationship under the laws of any state. +Or. Admin. R. 839-009-0210(21). Oregon also allows for and recognizes same-sex domestic partnerships (i.e., a civil contract entered into in person between two individuals of the same sex who are at least 18 years of age, who are otherwise capable and at least one of whom is a resident of Oregon). +Or. Rev. Stat. § 106.305.
Oregon law does provide leave under the OFLA for domestic partners, but such leave is not covered by the FMLA. +Or. Rev. Stat. § 106.340. However, the OFLA only extends leave benefits to same-sex domestic partners who received a Certificate of Registered Domestic Partnership from the State of Oregon. +Or. Rev. Stat. § 106.320; +Or. Rev. Stat. § 106.325. Because the FMLA does not include domestic partners as qualifying family members, and the OFLA does not treat domestic partners as spouses, it is possible for an employee to take OFLA leave to care for his or her domestic partner and still retain his or her full yearly entitlement of FMLA leave.
In addition, an Oregon employer should be careful if it seeks to confirm an employee's same-sex spousal relationship (for purposes of the FMLA) to ensure it does not discriminate in any way. While the FMLA allows an employer to confirm a family relationship, the employer's practices to confirm such relationships should be the same for employees in same-sex marriages as those in opposite-sex marriages (e.g., if an employer does not ask heterosexual employees for marriage licenses it should be careful about asking homosexual employees for such documentation).
Apart from FMLA considerations, employers with employees residing in Oregon should look at existing policies that provide for leave based on spousal relationships, such as bereavement leave. Policy language (such as how a spouse is defined) may need to be revised.
Oregon Family Leave Act
Covered employers are those that employ 25 or more employees in Oregon during each work day in 20 or more calendar workweeks in either the calendar year in which the OFLA leave will be taken or the preceding calendar year. +Or. Rev. Stat. § 659A.153(1); +Or. Admin. R. 839-009-0210(3).
Because the scope of the OFLA is broader than that of the FMLA (i.e., the OFLA extends to employers with 25 or more employees, in contrast to the FMLA's coverage of employers with 50 or more employees), smaller Oregon employers should be mindful that they may be subject to state law requirements.
In cases where both the FMLA and the OFLA apply, an employer must apply the law most beneficial to the employee.
An employee's eligibility depends upon the type of leave he or she is seeking.
- Parental Leave: employees are eligible for leave to care for a new child after 180 days of employment (no hours-per-week requirement). +Or. Rev. Stat. § 659A.156; +Or. Admin. R. 839-009-0210(6)(a).
- All Other Leaves: employees are eligible for other types of leave under the OFLA after 180 days of employment if they have worked an average of 25 or more hours per week during that period. +Or. Admin. R. 839-009-0210(6)(b).
Unlike the FMLA, the OFLA does not require the employer to have a certain number of employees within a fixed proximity to the worksite for an employee to be eligible for OFLA leave. Also, when determining whether an employee is eligible for leave under the OFLA, "the employee need not work solely in the state of Oregon." +Or. Admin. R. 839-009-0210(6)(e).
Length and Purpose of Leave
Length of Leave
The general rule is that eligible employees may take up to 12 weeks of OFLA leave in a 12-month period. +Or. Rev. Stat. § 659A.162(1); +Or. Admin. R. 839-009-0240(1). However, unlike the FMLA, in some situations the OFLA may entitle the employee to more than 12 weeks of OFLA leave in a leave year. +Or. Rev. Stat. § 659A.162(2). Specifically:
- A female employee may take up to 12 weeks of OFLA pregnancy disability leave in addition to 12 weeks of OFLA leave for any other purpose during a single 12-month period, for a total of up to 24 weeks of OFLA leave. +Or. Admin. R. 839-009-0240(2).
- A female employee may take up to 12 weeks of OFLA pregnancy disability leave plus up to 12 weeks of parental leave plus up to another 12 weeks of OFLA sick child leave, for a total of up to 36 weeks of OFLA leave. Additional OFLA leave is not available in the case of birth, adoption or foster care placement of more than one child at the same time. +Or. Admin. R. 839-009-0240(4).
- An employee may take up to 12 weeks of OFLA parental leave followed by up to 12 weeks of OFLA sick child leave, for a total of up to 24 weeks. +Or. Admin. R. 839-009-0240(5).
If an employee takes bereavement leave under the OFLA, such leave will not reduce the employee's FMLA leave entitlement unless the employee can separately qualify for FMLA's serious health condition leave (e.g., due to counseling, depression, etc., as a result of the death).
If two eligible family members work for the same employer, they may take OFLA leave at the same time only if:
- One employee is needed to care for the other employee who has a serious health condition;
- Both employees have a serious health condition;
- One employee is needed to care for a child with a serious health condition while the other employee has a serious health condition himself or herself;
- The employees are taking bereavement leave for the death of a family member; or
- The employer allows the employees to take concurrent OFLA leave.
OFLA parental leave must be taken in one uninterrupted period, unless the employer allows intermittent leave or a reduced work schedule, and it must be completed within 12 months after the birth, adoption or placement of the child. However, an employee may take OFLA leave intermittently to "effectuate" the adoption or placement of a foster child. In addition, leave taken to attend the birth of or to give birth to the employee's child need not be taken in one uninterrupted period with any remaining parental leave taken after the birth of the child. +Or. Rev. Stat. § 659A.162(5); +Or. Admin. R. 839-009-0240(8).
An employer does not have to allow sick child leave if another family member, including a noncustodial biological parent, is willing and able to care for the child. +Or. Rev. Stat. § 659A.162(6); +Or. Admin. R. 839-009-0240(10).
Bereavement leave must be completed within 60 days of the date the eligible employee received notice of the family member's death. If two or more family members work for a covered employer, each eligible employee may take concurrent family leave for a family member's death. A covered employer may not require an eligible employee to take multiple periods of leave related to a family member's death concurrently if more than one family member dies during the one-year period. For example, if an employee's spouse dies in January and then his or her parent dies in March, the employee may not be forced to take bereavement leave for the spouse and the parent concurrently. In addition, spouses or same-gender domestic partners who work for the same employer may take bereavement leave at the same time. +Or. Rev. Stat. § 659A.159(1)(e); +Or. Rev. Stat. § 659A.159(2)(b); +Or. Rev. Stat. § 659A.162(2).
Generally, if an employee fails to provide required advance notice (unless an exception applies), an employer may reduce the total period of OFLA leave authorized by law by three weeks. However, the reduction cannot limit leave connected to a family member's death. See Notice and Certification.
OFLA leave does not displace any law or employer policy (e.g., a bereavement policy) or collective bargaining agreement (CBA) that is more favorable to the employee. Oregon employees may be eligible for OFLA leave after 180 days on the job, that is, before they meet the eligibility requirements for FMLA leave. In that situation, OFLA leave that an employee takes before becoming eligible for FMLA leave is not counted against the employee's FMLA leave entitlement of up to 12 weeks. Thus, an employee may be able to take 12 weeks of OFLA leave after 180 days of employment and then up to 12 weeks of FMLA leave later in that same 12-month period after meeting the 12 months/1,250 hours eligibility requirements for FMLA leave. However, this situation would rarely occur because new employees who have used up their OFLA time generally have not worked enough hours to qualify immediately for FMLA leave.
Time that an employee is not able to work because of a compensable injury does not reduce the amount of OFLA leave available to the injured worker (but this time can be counted as FMLA leave). However, the employer can count time missed against OFLA if an injured worker refuses a suitable offer of light duty or modified employment. +Or. Admin. R. 839-009-0240(11); +Or. Admin. R. 839-009-0240(12).
Purpose of Leave
OFLA leave is available for the following reasons or circumstances:
- Parental Leave: Employees, both male and female, may take parental leave for the birth of the employee's child or to care for a newborn child, newly adopted child or newly placed foster child. A qualifying newly adopted or placed foster child may be either under 18 years of age or 18 and older but incapable of self-care because of a physical or mental impairment. Parental leave includes any time needed for legal processes required for the adoption or placement of a foster child. +Or. Rev. Stat. § 659A.159(1)(a); +Or. Admin. R. 839-009-0230(1).
- Pregnancy Disability Leave: An employee is entitled to pregnancy disability leave for prenatal care or a disability relating to pregnancy or childbirth, whether it occurs before, during or after the birth of the child. +Or. Admin. R. 839-009-0240(2). Several parts of the OFLA regulations are specifically limited to an eligible female employee. Oregon was in the news in the first half of 2008 when a biological female transgendered person who was living as a male and married to a female became pregnant and had a child. Presumably, Oregon's Bureau of Labor and Industries (BOLI) would interpret the OFLA regulations to give this individual pregnancy disability leave even though the individual arguably is not female. Pregnancy disability leave is considered a form of serious health condition leave. +Or. Admin. R. 839-009-0230(3).
- Sick Child Leave: An eligible employee can take sick child leave to care for the employee's child who has an illness or injury that requires home care but does not amount to a serious health condition. The OFLA regulations state specifically that "[a]n employer is not required to grant leave for routine medical or dental appointments. +Or. Admin. R. 839-009-0230(4).
- Bereavement Leave: Eligible employees may take up to two weeks of leave per death of a family member, up to a maximum of 12 weeks per calendar year, to attend the funeral or memorial service, make arrangements necessitated by the death and grieve the death. +Or. Rev. Stat. § 659A.159(1)(e).
- Serious Health Condition Leave: Eligible employees may take OFLA leave for their own serious health condition. This form of leave includes leave because of the employee's pregnancy-related inability to work. +Or. Rev. Stat. § 659A.159(1)(c); +Or. Admin. R. 839-009-0230(3). An eligible employee also may take OFLA leave because of the serious health condition of a family member. +Or. Admin. R. 839-009-0230(2)(a). See Future Developments.
The list of qualifying family members is broader under the OFLA than the FMLA and includes:
- A spouse or same-gender registered domestic partner;
- Parent (whether biological, adoptive, foster, step, custodial or noncustodial);
- Parent-in-law or parent of same-gender registered domestic partner;
- Grandparent or grandchild of the employee; or
- Child (either minor or adult) of the employee or the employee's same-gender domestic partner (including biological, adopted, foster or stepchild), or a person with whom the employee was or is in an in loco parentis relationship.
Under the OFLA, a serious health condition is a mental or physical illness, injury or impairment that:
- Requires an inpatient stay in a medical facility;
- Poses an imminent danger of death, or is terminal with a reasonable possibility of death in the near future;
- Requires "constant or continuing care such as home care administered by a health care professional";
- Involves a period of incapacity for more than three consecutive calendar days, plus any subsequent treatment or recovery for that condition;
- Involves a period of incapacity resulting from a chronic serious health condition that involves permanent or long term incapacity from the condition, or from a condition for which treatment may not be effective, or for the terminal stages of a disease if the individual is under continuing care, even if not receiving active treatment;
- Involves a condition that requires multiple treatments if the condition that would likely result in incapacity for more than three days if it were not treated; or
- Any period of disability due to pregnancy or childbirth or absence for prenatal care.
Notice and Certification
For OFLA leave, employees must provide written notice to the employer 30 days in advance of the leave. The employer may require the employee to include an explanation of the need for the leave in the notice. +Or. Rev. Stat. § 659A.165(1); +Or. Admin. R. 839-009-0250(1).
The OFLA regulations set forth procedures for designating leave as OFLA leave. Except in the case of leave for a sick child leave and for the death of a family member, when an employee requests OFLA leave or when the employer acquires knowledge that an employee's leave may be for an OFLA-qualifying reason, within five business days, the employer must provide the employee a written request for information verifying whether the leave is OFLA-qualifying. Within five business days of receiving the requested information from the employee, the employer must notify the employee of whether or not the employee is eligible and qualifies to take OFLA leave. If an employer determines that an employee does not qualify for OFLA leave for the reason requested, the employer must notify the employee in writing that the employee does not qualify. The written notice must state that the employee is ineligible or the reason for requested leave does not qualify for OFLA leave and at least one reason why the employee is not eligible or the reason does not qualify for leave. +Or. Admin. R. 839-009-0250(10).
An employer may request additional information to determine whether a leave qualifies as OFLA leave except in cases of parental and bereavement leave (no medical certification required) or sick child leave (no medical verification may be required until after three occurrences). An employer may provisionally designate leave as OFLA leave until sufficient information is received. +Or. Admin. R. 839-009-0250(1). BOLI has provided employers with an optional Certification of Serious Health Condition form to help employers determine if an employee is eligible for leave under the FMLA and/or the OFLA.
An eligible employee may take leave without prior notice in the following instances:
- An unexpected serious health condition of the employee or family member;
- A death of a family member;
- An unexpected illness, injury or condition of a child that requires homecare; and
- A premature birth, unexpected adoption or unexpected foster placement.
If an employee starts leave without prior notice, the employee must give oral notice to the employer within 24 hours of the start of the leave and must provide written notice within three days of returning to work. +Or. Rev. Stat. § 659A.165(3); +Or. Admin. R. 839-009-0250(3).
If an employee fails to provide the required notice, the employer may reduce the period of OFLA family leave "by an amount no greater than the number of days of leave the employee has taken without providing timely notice of leave" but no more than three weeks. However, an employer may not reduce an employee's two-week bereavement leave entitlement if the employee fails to provide timely notice of the need for bereavement leave.
If an employee fails to provide timely notice, leave may be delayed or reduced. An employer may not reduce an employee's available OFLA leave or take disciplinary action unless it has posted the Family Leave Act notice or can establish the employee had actual notice of the notice requirement. Moreover, federal regulations prohibit reducing the leave period under the FMLA but permit an employer to delay the start of a leave due to improper notice. +Or. Admin. R. 839-009-0250(9); +Or. Admin. R. 839-009-0250(10). If the leave qualifies under both the OFLA and FMLA, the employer may:
- Delay FMLA coverage for up to 30 days after notice was received as permitted under the FMLA regulations (this applies only to leave to which the employee is entitled under FMLA);
- Reduce the total period of unused OFLA leave by an amount no greater than the number of days of leave the employee has taken without providing timely notice of leave. This reduction of leave may not exceed three weeks in a one-year leave period. This applies only to leave to which the employee is entitled under OFLA; and
- Subject the employee to disciplinary action under a uniformly applied employer policy or practice.
An employer may require an employee on leave to report periodically to the employer on his or her status and intention to return. +Or. Rev. Stat. § 659A.171(4)(b).
When an employee does not return to work after the end of the authorized period of OFLA leave, an employer having reason to believe that the continuing absence may qualify as OFLA leave must request additional information and may not treat the continuing absence as unauthorized unless the requested information is not provided or does not support OFLA qualification. +Or. Admin. R. 839-009-0250(1)(d).
An employer may require medical certification when OFLA leave is taken due to an employee's or family member's serious health condition or for sick child care after the third occurrence in a one-year period. +Or. Admin. R. 839-009-0250(5); +Or. Admin. R. 839-009-0250(6). If an employee is required to provide 30 days' notice of a leave, the employer may require that medical certification be provided before the leave starts. If prior notice is not given, medical verification must be provided within 15 days of the employer's request. +Or. Rev. Stat. § 659A.168(1); +Or. Admin. R. 839-009-0260(3); +Or. Admin. R. 839-009-0260(4). The employer must pay the cost of medical verification if not covered by insurance. +Or. Admin. R. 839-009-0260(2). An employer may not require medical verification for parental leave. +Or. Admin. R. 839-009-0260(1).
Under the OFLA, an employer may not directly ask the health care provider for additional information. A health care provider representing the employer may contact the employee's health care provider, with the employee's permission, for purposes of clarifying the medical verification. +Or. Admin. R. 839-009-0260(8).
An employer may require subsequent medical verification on a reasonable basis. +Or. Rev. Stat. § 659A.168(1).
An employer may require medical certification for OFLA sick child leave but only after the employee has taken more than three days of leave during any one-year period. The employer must pay for the medical evaluation if not covered by insurance. An employer may not require a second opinion for this purpose. +Or. Rev. Stat. § 659A.168(2); +Or. Admin. R. 839-009-0260(13).
An employer may require that an employee provide a fitness-for-duty certification before returning to work but only if it has a uniformly applied practice or policy of requiring such certification. The employer may not ask for a second opinion. +Or. Rev. Stat. § 659A.171(4); +Or. Admin. R. 839-009-0260(12). In Oregon, an employer must pay for any fitness-for-duty or other medical certification that is required as a condition of continuing employment. +Or. Rev. Stat. § 659A.306. See Employee Leaves > FMLA > Cost of Fitness-For-Duty Certification.
Compensation and Benefits During Leave
OFLA leave does not have to be paid (unless pay is provided by a contract, a collective bargaining agreement, or the employer's policy). +Or. Rev. Stat. § 659A.174; +Or. Admin. R. 839-009-0280(1). An employee may use accrued paid sick leave, personal leave, vacation leave or any other paid leave offered in lieu of vacation leave, during any OFLA leave. Accrued sick leave does not include disability insurance or disability benefits. +Or. Admin. R. 839-009-0280(2).
Alternatively, an employer may require an employee to use available paid leave during OFLA leave, and may determine the order in which paid leave is to be used if consistent with a collective bargaining or other written agreement between the employee and the employer or an employer policy, but only if the employer provides written notice:
- Before the beginning of the leave that accrued paid leave is to be used during OFLA leave; or
- Within five business days of the employee's notice of unanticipated or emergency leave that the employee will be required to use accrued paid leave.
Under the OFLA, an employee may not lose any benefits that accrued prior to leave (except benefits used during the leave). +Or. Rev. Stat. § 659A.171(2).
Benefits are not required to continue to accrue during a period of family leave unless continuation or accrual is required under a contract, a collective bargaining agreement or an employer policy. However, an employee who is provided group health insurance is entitled to the continuation of group health insurance coverage during the period of family leave on the same terms as if the employee had continued to work. If family member coverage is provided to the employee, family member coverage must be maintained during the period of family leave. The employee must continue to make any regular contributions to the cost of the health insurance premiums during the leave that he or she was making according to the health insurance policy prior to the leave. +Or. Rev. Stat. § 659A.171(5), as amended by +2015 Bill Text OR H.B. 2600; +Or. Admin. R. 839-009-0270(6).
An employee returning from OFLA leave must be reinstated immediately to all benefits that the employee had before going out on OFLA leave, unless the benefits were changed or eliminated for similarly situated employees. An employer must restore a returning employee to the benefits he or she would have had if OFLA leave had not been taken, even if the employee does not make the required premium payments while on leave. Regardless of nonpayment, the employee is not required to meet any qualification requirements for the benefit plan, such as a waiting period or new medical exam. As a practical matter, if health insurance coverage that has lapsed for nonpayment of the premiums cannot be reinstated immediately, the employer may need to pay the employee's share of the premiums during OFLA leave so that there will not be a gap in health insurance coverage when the employee returns from OFLA leave.
If an employer pays any costs associated with providing disability, life or other insurance while the employee is on OFLA leave, the employer may deduct the amounts from the employee's pay when he or she returns until the amount advanced is paid. The deduction may not exceed 10 percent of the employee's gross pay each pay period. +Or. Rev. Stat. § 659A.171(5); +Or. Admin. R. 839-009-0270(6).
If the employee does not return to work after taking leave, the employer may deduct amounts paid for the cost of health, disability, life or other insurance from any amounts owed to the employee (or may seek to recover these amounts by any legal means), unless the employee fails to return to work due to a continuation, reoccurrence or onset of a serious health condition or other circumstances beyond the employee's control. +Or. Rev. Stat. § 659A.171(6).
Intermittent or Reduced Schedule OFLA Leave
An Oregon employer may transfer an employee who is on OFLA intermittent leave or a reduced work schedule, or who is recovering from a serious health condition, to an alternate position to accommodate the leave or recovery from the serious health condition only if the transfer is temporary and voluntary, and the alternative job has equivalent pay and benefits. +Or. Admin. R. 839-009-0245(1); +Or. Admin. R. 839-009-0245(5). This is more restrictive than comparable temporary transfers under the FMLA, which need not be voluntary.
Upon return from OFLA leave, an employer must restore an employee to the same pre-leave position, if the position still exists, regardless of whether the employer filled the position with a replacement worker during the leave. If the position no longer exists, the employer must restore the employee to any available equivalent position. If an equivalent position is not available at the jobsite, the employer may offer the employee an equivalent position at a jobsite within 20 miles. +Or. Rev. Stat. § 659A.171; +Or. Admin. R. 839-009-0270.
An employee is not entitled to reinstatement to his or her former position if he or she would have been laid off or bumped even if OFLA were not taken. +Or. Admin. R. 839-009-0270(3).
If an employee provides unequivocal notice of his or her intent not to return from OFLA, the employee may complete the leave (if the need still exists), but the employer is under no obligation to hold the employee's position open or to restore the employee to his or her prior position or benefits except as required by the Consolidated Omnibus Budget Reconciliation Act (COBRA) or under the employer's own policies or practices. +Or. Admin. R. 839-009-0270(8).
Oregon Bureau of Labor and Industries
The Oregon Bureau of Labor and Industries (BOLI) is charged with enforcing compliance with Oregon's state laws relating to wages, hours and terms and conditions of employment, and it advocates policies and laws dealing with work-life balance.
Oregon Military Family Leave Act
The Oregon Military Family Leave Act (OMFLA) covers employees with a spouse or domestic partner who is a member of the US military and has been notified of an impending call or order to active duty or has been deployed. The OMFLA applies during a period of military conflict. Eligible employees are entitled to a total of up to 14 days of unpaid leave per deployment to be taken before deployment and when the servicemember is on leave from deployment. Servicemembers may be members of the US Armed Forces, National Guard or military reserve forces. Like the OFLA, the OMFLA applies to employers with 25 or more employees in Oregon for each working day during each of 20 or more calendar workweeks in the year in which leave is taken or the year immediately preceding. +Or. Rev. Stat. § 659A.090.
Employees are eligible for family military leave if they have been employed for an average of at least 20 hours per week. The employee must provide the employer notice of the need for leave within five business days of receiving official notice of an impending call or order to active duty or of a leave from deployment, and may be required to provide written certification in support of the leave. Leave taken under the OMFLA will count against the employee's 12-week leave entitlement under the OFLA. The employee may elect to substitute any accrued leave for any part of the leave provided by the OMLFA. +Or. Rev. Stat. § 659A.093.
An employee who takes leave under the OMFLA is entitled to continuation of benefits and must be restored to the position of employment as set forth under the OFLA. Employers are prohibited from denying military family leave to an employee who is entitled to such leave under the OMFLA, and from retaliating or discriminating against an individual because the individual has inquired about the provisions of the OMFLA, submitted a request for military family leave or invoked any provision of the OMFLA. +Or. Rev. Stat. § 659A.093; +Or. Rev. Stat. § 659A.096.
Oregon Paid Sick and Safe Time
The Oregon Sick Time Law (OSTL) requires employers to provide sick and safe time to eligible employees. Whether the time is paid depends on the employer's size.
An employer is any person that employs one or more employees working anywhere in the State of Oregon; a political subdivision of the state; and any county, city, district, authority, public corporation or entity or any instrumentality thereof, but does not include the federal government. +ORS § 653.601.
A covered employee includes:
- Full-time and part-time employees;
- Exempt and nonexempt employees;
- Individuals paid on a piece-rate basis;
- Individuals paid on an hourly, salary or commission basis; and
- Home care workers who provide hourly or live-in care to the elderly or disabled.
Paid or Unpaid Time
Under the OSTL, all eligible employees are entitled to accrue up to 40 hours of sick and safe time each year. However, whether the time is paid or unpaid depends on the size of the employer:
- Oregon employers with an average of 10 or more employees working anywhere in Oregon must provide paid time;
- Oregon employers with fewer than 10 employees must provide unpaid time; and
- Oregon employers in an Oregon city with a population exceeding 500,000 (i.e., Portland) with an average of six or more employees working anywhere in Oregon must provide paid time, while those with fewer than six must provide unpaid time.
An employer located in a city with a population exceeding 500,000 includes, but is not limited to, an employer that maintains any office, store, restaurant or establishment in that city. It does not include an employer that maintains only a seasonal farm stand or a trailer that is used temporarily on a construction site for office purposes only.
Qualifying Reasons for Leave
Accrued sick and safe time may be used for the following purposes:
- An employee's or family member's mental or physical illness, injury or health condition, diagnosis, care or treatment of a mental or physical illness, injury or health condition, or for preventive medical care;
- Any purpose specified in the Oregon Family Leave Act, which includes:
- To care for an infant, a newly adopted child or a newly placed foster child;
- To care for a family member with a serious health condition;
- To recover from or seek treatment for a serious health condition of the employee;
- To care for a child who is suffering from an illness, injury or condition that is not considered a serious health condition, but requires home care;
- To deal with the death of a family member by attending a funeral, making arrangements necessitated by the death or grieving;
- For reasons necessitated by domestic violence, harassment, sexual assault or stalking, including to seek legal or law enforcement; to seek medical treatment; to obtain counseling from a licensed mental health professional or services from a victim service provider; or to relocate or take steps to secure an existing home;
- To donate accrued sick and safe time to another employee if the other employee uses the donated time for a purpose specified under the OSTL and the employer has a policy that allows an employee to donate sick and safe time to a co-worker; or
- In the event of a public health emergency.
Family member has the same definition as under the OFLA. A public health emergency includes, but is not limited to, the closure of the employee's workplace or the school or place of care of the employee's child due to a public health emergency, or exclusion of the employee or a family member from work or school due to health reasons.
Accrual and Use of Sick and Safe Time
Under the OSTL, sick and safe time accrues at the rate of at least one hour of sick time for every 30 hours worked or one and one-third hours for every 40 hours worked. Employees may accrue a maximum of 40 hours of sick and safe time per year. Frontloading is allowed.
Employees begin to accrue sick and safe time upon commencement of employment. Employees may use accrued sick and safe time on the employee's 91st calendar day of employment. An employer may limit employees to using a maximum of 40 hours in a year. Up to 40 hours may be carried over, and up to 80 hours may be banked (between accrual and carry over).
Notification of the Need for Leave
An employer may require employees to comply with its usual and customary notice and procedural requirements for requesting time off (e.g., calling a designated phone number, applying a uniform call-in policy) under the sick and safe time law if those requirements do not interfere with the employee's ability to use sick and safe time.
If the need for leave is foreseeable (e.g., planned medical appointment), the employer may require reasonable advance notice. Reasonable means not to exceed 10 days before the date the sick and safe time is to begin or as soon as is practicable. The employee must make a reasonable attempt to schedule the leave in a manner that does not unduly disrupt the employer's operations.
If the need for leave is unforeseeable (e.g., emergency, accident or sudden illness), the employee must provide notice before the start of his or her shift or as soon as is practicable.
If possible, an employee's request for leave should include the anticipated duration of leave. Any changes to the expected duration must be communicated to the employer as soon as possible.
Verification and Certification of Leave
If an employee takes more than three consecutive scheduled workdays of sick and safe time for a reason other than leave donation or a public health emergency, an employer can require the employee to provide verification of the need for the sick and safe time before the leave time begins, or as soon as otherwise practicable.
If the need for leave is foreseeable and projected to last more than three consecutive scheduled workdays and the employee begins sick and safe time without providing the required prior notice, the requirements differ depending on the purpose of leave:
- For sick leave, the employer may require the employee to provide a medical certification within 15 calendar days after the employer requests it. The certification must come from a health care provider and must show that the absence is for a qualifying reason, but should not explain the nature of the illness.
- For safe leave, the employee must provide certification within a reasonable time frame after receiving the employer's request for it.
Required Notice and Posting
An employer must provide written notice of the requirements of the sick and safe time law to each employee in the language the employer typically uses to communicate with the employee by: distributing to each employee personally, incorporating into an employee handbook or conspicuously posting at each work site. This notice must be provided no later than the end of the employer's first pay period after the law takes effect; for employees hired after the effective date, by the end of their first pay period.
An employer is also required to provide written notification to each employee at least quarterly that states the amount of accrued and unused sick and safe time available for the employee's use (unless the employee did not work during the previous quarter).
An employer may not deny, interfere with, restrain or fail to pay for sick time to which an employee is entitled or discriminate or retaliate against an employee for exercising his or her rights under the ordinance. An employer is also prohibited from applying an absence control policy that includes sick and safe time absences as an absence that may result in an adverse employment action against the employee. To claim a violation of the ordinance, an employee may either file a claim with the Oregon Bureau of Labor and Industries or file suit in court. +ORS § 653.606; +ORS § 653.641.
Interaction With Other Laws and Policies
An employer with a sick leave policy, paid vacation policy, paid personal time off policy or other paid time off program that is substantially equivalent to or more generous than the sick time law must comply with the law's requirements only for the first 40 hours that the employer's policy provides per year. The employer need not comply with the law's requirements beyond the first 40 hours provided per year.
If an employee has exhausted all paid and unpaid leave available to the employee under the employer's policies, the employer is not obligated to provide additional leave for paid or unpaid sick and safe time under the law. However, the employer may be obligated to provide paid or unpaid sick time by other federal or state laws that provide for paid or unpaid leave for similar purposes. +ORS § 653.611.
The sick and safe time law expressly preempts local governments from enacting and enforcing their own sick leave ordinances. +ORS § 653.661.
Paid sick and safe time under the state law may be used concurrently with leave provided under other state and federal laws, including the Oregon Family Leave Act, the federal Family and Medical Leave Act and the state's domestic violence leave law.
For more information on this law, including ineligible employees, increments of use, carryover and additional certification requirements, please see Employee Leaves > Other Leaves: Oregon.
Interaction of State and Federal Leave Laws
There are numerous types of other leaves that may be available to Oregon employees - some required by federal, state or local law, and some provided by company policy, as well as several sources of income replacement. See Employee Leaves > Other Leaves: Oregon. The OFLA regulations expressly provide that leave taken under the FMLA counts as OFLA leave provided the employee is also eligible for OFLA leave and that employers subject to both the OFLA and FMLA must apply, in a given leave situation, the provision that is more beneficial to the employee's circumstances. +Or. Admin. R. 839-009-0220.
Oregon employers must also be conscious of the interaction between the FMLA, the OFLA, the federal Americans with Disabilities Act (ADA) and state disability law. An employee with a serious health condition who exhausts his or her leave entitlement under the OFLA and FMLA may nonetheless be entitled to additional leave, if additional leave would be considered a reasonable accommodation under the ADA (or state disability law) and the employee is otherwise eligible for protection under the ADA or its state equivalent. The FMLA regulations state that the ADA allows an indeterminate amount of leave, barring undue hardship to the employer, as a reasonable accommodation. See also Disabilities (ADA) > ADA Interplay.
While some of these laws can run at the same time, others cannot. Oregon employers should remain alert to the various types of leave available and take care to track employees' leaves of absence, including:
- The date the leave begins;
- The type of leave; and
- The expected return date.
Effective January 1, 2020, the Oregon Family Leave Act is amended to expand the list of serious health conditions to include any period of absence for the donation of a body part, organ or tissue, including preoperative or diagnostic services, surgery, post-operative treatment and recovery. +2019 Bill Text OR S.B. 796. Additionally, the Oregon Sick Time Law will permit sick and safe time to be used for an absence for the same purpose.