State FMLA – Or. Rev. Stat. §§ 659A.150 to 659A.186 (Oregon Family Leave Act)

Covered Employers: Employers with 25 or more employees in the State of Oregon each working day during 20 or more calendar work weeks in the current or preceding calendar year

Employee Eligibility: Employee must have worked for employer at least 180 days immediately prior to leave and at least 25 hours per week. However, weekly hours requirement does not apply for family leave taken to care for newborn infant, newly adopted or newly placed foster child under 18 or newly adopted or newly placed foster child over 18 incapable of self care because of mental or physical disability. Special rules apply to teachers and employees re-employed after a period of uniformed service.

Entitlement: Generally, 12 weeks of leave in a one year period, except where the leave is used for bereavement, in which case the employee may take two weeks upon the death of each family member of the employee, up to a maximum of 12 weeks leave in a one-year period. Further, the law requires extending leave amount in the following circumstances:

1) employees who use 12 weeks of leave for the birth or adoption or foster care of a child can take an additional 12 weeks of leave to care for a child suffering from a non-serious illness, injury, or condition that requires home care; (Oregon Sick Child) except, employers do not have to grant leave to care for a child's minor illness when another family member is available to care for the child

2) eligible female employees can take an additional 12 weeks of leave in a one-year period if they are disabled by pregnancy or childbirth. Oregon Pregnancy Medical(see page 305)
Family leave can be taken for:

• Parental leave for the birth of the employee's child;

• Adoption or foster placement of a child under the age of 18 or a child over 18 who is incapable of self-care due to a disability;

• An employee's own serious health condition;

• A family member's serious health condition;

• A child's non-serious illness, injury or other condition that requires home care (these specs are separated in Oregon Sick Child(see page 309);

• Bereavement -the law also includes a 2 week bereavement leave. The leave can be for planning of the funeral, the funeral (or alternative to funeral) and grieving and must be taken within 60 days of the date in which the employee receives notice of the death. (Note: 60 day notice not systematically accounted for)

A "serious health condition," includes an illness, injury, impairment or physical or mental condition that requires inpatient care in a hospital, hospice or residential care facility; an illness, disease or condition that in the medical judgment of the treating health care provider poses an imminent danger of death, is terminal in prognosis with a reasonable possibility of death in the near future, or requires constant care; any period of disability due to pregnancy, or period of absence for prenatal care; or 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.

Employer Notice: Except in the case of sick child leave and bereavement leave, when an employee requests leave, or when the employer acquires knowledge that an employee's leave may be for an Oregon Family Leave Act-qualifying reason, the employer must provide the employee within 5 business days, a written request for information to verify whether the leave is OFLA-Qualifying. Within 5 business days of receiving the requested information, the employer must notify the employee whether the employee is eligible and qualifies for 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 and/or that the requested leave does not qualify, and at least one reason why the employee is not eligible or the circumstances do not qualify.
Employers must post copies of the state-provided family leave notice in areas accessible to and regularly frequented by employees at every facility or work sites.

Employee Notice: Employees must give at least 30 days' written notice of the need for leave. The employer may require the employee to include an explanation in general, non-medical terms of the need for the leave in the notice. If an employee is unable to give 30 days' notice, the employee is encouraged to give the employer as much advance notice as is practicable. An employee may take leave without prior notice in the following circumstances: : (1) an unexpected serious health condition of the employee or family member; (2) an unexpected illness, injury or condition of a child that requires homecare; and (3) 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 3 days after the employee returns to work. An employer may request additional information to determine whether a leave qualifies under the law, except in cases of parental leave. An employer may provisionally designate leave as leave under the Oregon Family Leave Act until sufficient information is received. If an employee fails to provide the required notice, the employer may reduce the period of family leave by 3 weeks and the employee may be subject to disciplinary action under a uniformly applied policy or practice of the employer. However, bereavement leave is not subject to this requirement. An employer may not reduce an employee's available OFLA or take disciplinary action unless it has posted the required notice or can establish the employee had actual notice of the notice requirement. Further, Federal regulations prohibit reducing the leave period under FMLA but permit an employer to delay the start of leave due to improper notice. An employer may require an employee on leave to periodically report to the employer on his or her status and intention to return. When an employee does not return to work after the end of the authorized period of leave, an employer having reason to believe that the continuing absence may qualify as Oregon Family Leave Act 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 Oregon Family Leave Act qualification.

Obligation to Provide Certifications or Documents Supporting Need for Leave: An employer may require medical certification when leave is taken due to an employee's or family member's serious health condition or for sick child care. 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. employer must pay the cost of medical verification if not covered by insurance. An employer may not require medical verification for parental leave. An employer may require a second (and in some instances, a third) medical opinion at the employer's expense. 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.
An employer may require subsequent medical verification on a reasonable basis. 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.

Paid?: No. However, the employee or employer may choose to have the employee's family leave run concurrently with workers' compensation
absence or any other paid or unpaid leave. The 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 agreement or other written agreement between the employee and the employer or an employer policy, but only if the employer provides written notice: 1) prior to the commencement of the leave, that accrued paid leave is to be used during OFLA leave, or 2) within 5 business days of the employee's notice of unforeseeable leave that the employee will be required to use accrued paid leave.

Note: If leave qualifies under state and federal law and an employee takes part-day leave, such employee's pay can be reduced without jeopardizing the employee's exempt status. If the leave qualifies under state law only, reducing an employee's pay for part day absences jeopardizes the employee's exempt status under state law.

Benefits: OFLA does not require benefits be maintained during leave. However, if the employer maintains benefits for employees on other types of leave (e.g., personal leave of absence), the Oregon Bureau of Labor and Industries takes the position that it is discriminatory to deny benefits to an employee simply because they are using leave under OFLA. If an employer chooses to provide benefits, benefits must be provided at the same payment terms that applied before the leave. In any case, all benefits must be reinstated at prior levels immediately upon the employee´s return. An employer that elects to continue other insurance during an OFLA leave may require the employee to pay the share the employee paid prior to the leave.

Reinstatement: On return from family leave, employees must be restored to their former positions if the position still exists, regardless of whether the employer filled the position with a replacement worker during the leave. If an employee's original position has been eliminated, the employer must restore the employee to any available position with equivalent employment benefits, pay, and other terms and conditions of employment. If an equivalent position is unavailable at a returning employee's job site, the employee can be offered an equivalent position at a job site located within 20 miles of the former work site. An employee is not entitled to reinstatement to his or her former position if he or she would have been bumped even if OFLA leave were not taken. If an employee provides unequivocal notice of his/her intent not to return from OFLA leave, 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 COBRA

Other Important Definitions/Requirements: “Family member” includes spouse; same sex domestic partner, employee’s or domestic partner’s biological, adoptive or foster parent or child; legal guardian or person with whom an employee has or had a parental relationship involving financial or day to day responsibility for a child; an employee’s parent-in-law, or parent of an employee’s same sex domestic partner; or grandparent or grandchild of the employee.

Relationship with Other Leave: State family leave is to be taken concurrently with federal FMLA leave. Any FMLA leave taken will count as state leave if the employee is eligible for state family leave. Employers subject to both state and federal leave laws must use the law and regulations that are more beneficial to employees’ circumstances.

Absence Specifications