Oregon Protected Leave
The Oregon Family Leave Act (OFLA) provides an unpaid, protected leave for Oregon Employees.
Did you know?
The purpose of this article is to outline the main provisions of the Oregon Family Leave Act. This includes compliance, how and when leave corresponds to the U.S. Family Medical Leave Act, and when it provides additional protected leave for employees.
Overview of the Oregon Family Leave Act
Oregon’s Family Leave Act is broken into several types of leave. Those leave types are parental leave, serious health condition leave, pregnancy disability leave, sick child leave, bereavement leave, Oregon military family leave.
Depending on the reasons for the leave, employees can access up to 12 weeks of protected leave in a 12 month period.
Covered employers have at least 25 employees working each of at least 20 weeks during the year. Employers with less than 25 employees are not required to provide protected leave under OFLA.
In order for an employee to qualify for OFLA, the employee must have been employed at least 180 days and worked an average of at least 25 hours each week. However, the 25 hour a week requirement is waived for parental leave to care for a new infant or adopted or foster child.
Oregon Family Leave Act: Parental Leave
Employees can take parental leave to bond with a newly born child or a child placed through adoption or foster care.
Parental leave covers new children into the employee’s home that are under the age of 18 or if older than 18, are incapable of self-care.
Parental care provides time for the employee to effectuate the legal process required for foster placement or adoption.
- To bond with a new infant
- To bond with a child placed into the home through adoption or foster care placement
- To spend time meeting the legal requirements for foster care and complete the placement
Serious Health Condition Leave under OFLA
The Serious Health Condition Leave covers both the employee and their covered family member who comes down with a serious health condition. Serious health conditions include injury, illness, impairment, or physical or mental condition of the employee of their family member.
Under OFLA, a serious health condition is any condition that requires inpatient care in a medical facility. That includes hospital stays, hospice, or residential care facilities, including nursing homes.
It also includes transition periods of moving the family member from one facility to another, and transportation required to obtain care from a physician.
Serious health condition also means that the physician judges death to be an imminent danger of death or is terminal in prognosis with a reasonable probability of death, with continuing care and a period of incapacity.
Serious health conditions can include chronic health conditions with periodic periods of incapacity. This can include asthma, diabetes, and epilepsy.
It can also include conditions in which treatment may not be effective. Examples would include Alzheimer’s disease, severe stroke or terminal stages of a disease. In the case of a serious health condition, the family member or employee must be under the care of a physician, but doesn’t need to be receiving active treatments.
It can involve treatments for restorative surgery or for a condition that would result in incapacity if not treated. Examples would include chemotherapy, physical therapy for arthritis, or dialysis for kidney disease. Lastly, a serious health condition includes disability caused by pregnancy or prenatal care absences.
- Includes physical or mental injury, illness, or impairment
- Requires Inpatient care
- Physical judges death to be a probable outcome or the patient to be in imminent danger
- Chronic conditions such as asthma diabetes and epilepsy
- Conditions in which treatment is not effective such as Alzheimer’s disease, stroke or terminal stages of a disease
- Treatments for conditions that would result in incapacity such as chemotherapy, physical therapy or dialysis.
- Pregnancy Disability
Family Members Covered Under Serious Health Conditions
Employee’s can take Family Leave for a number of family relationships including for their spouse, same-gender domestic partner, parent, child, grandparent, grandchild.
Parental relationships include custodial and non-custodial parents, adoptive, foster, biological, stepparents, parents-in-law, and the parents of a same-gender domestic partner.
Child relationships include relationships that the employee stands in loco parentis relationship, biological, adopted, foster, step child or the child of an employee’s same-gender domestic partner.
- Spouse or same-gender domestic partner
- Parent: biological, adopted, foster, step, in-law, parent, or same-gender domestic partner
- Child: biological, adopted, foster, in loco parentis relationships, step, or child of a same-gender domestic partner.
- Grandparent and Grandchild
Taking Pregnancy Disability Leave under FLA
Pregnancy disability leave is considered a serious health condition and includes any period of disability caused by the pregnancy.
It also includes prenatal care and postpartum recovery. Female employees can take an additional 12 weeks for pregnancy disability leave in addition to the 12 weeks offered under FLA.
Sick Child Leave
Children of the employee, 18 yrs and under or incapable of self care, do not have to have a serious health condition for the employee to take leave.
Employees can take leave to care for a child with an illness or injury that requires home care. Employees can take an additional 12 weeks of leave each year in addition to leave taken under the serious health conditions.
Employees can take time off to deal with and mourn the death of a family member. Employees can take up to 2 weeks of leave within the first 60 days of death.
Oregon Military Family Leave
Employees can take leave when their spouse or same-gender domestic partner is called into active duty or notified of pending active duty. They can also take leave if the service member is on leave from active duty. Employees can take up to 14 days of leave.
Correlating OFLA and FMLA Leave.
When employees qualify for both FMLA and OFLA, then both leaves will apply to the employee. Employers subject to both leaves must apply the provisions most beneficial to the employee.
As FMLA provides leeway for employers to provide more generous provisions than is written in FMLA such as allowing intermittent leave. OFLA requires that employers provide the best provisions for the employee in order to count both leaves concurrently.
Even so, there are situations in which employees would not qualify for both types of leave. OFLA provides leave protection to employees of mid sized employers who would not otherwise
Taking Leave when both Spouses work at the Same Employer
Unlike FMLA, in which spouses working for the same employer share the 12 weeks of leave, OFLA does not split protected leave between spouses at the same employer. Both spouses are entitled to take Parental or Family leave for the full 12 weeks.
But, OFLA does not require that employers allow spouses to take the time simultaneously. If both spouses took 12 weeks of leave, then the first 6 weeks of leave would count concurrently with FMLA as long as it was an FMLA qualifying reason.
Taking Military Leave under FMLA
FMLA has several covered exigencies that differ from the OFLA Military leave provisions. Under OLFA, employees are able to take up to 14 days of leave when their spouses are called into active duty or are on leave from active duty. FMLA also allows leave when a spouse is called into active duty, but it specifies that it must be active duty into a foreign country.
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FMLA also allows for military exigencies for reasons that are not covered under OLFA. Some of those reasons include time for the family to attend military ceremonies, briefings, programs and family support programs.
In addition, Military leave under FMLA allows for up to 26 weeks of leave for employees to care for a military family member with a serious illness or injury. FMLA allows for the next of kin to take time off. In some cases that leave can include siblings, first cousins, grandparents, uncles, and aunts. OFLA family serious health condition leave that would allow employees to take leave to care for a family member in the military.
This is important.
OFLA does not include aunts, uncle, first cousin or sibling relationships.
This means that:
If an employee was any of these relationships to the service member, the leave would only count toward FMLA and not toward OFLA. The employee would still have 12 weeks of leave provided under OFLA for other reasons.
Family Members under protected leave
OFLA provides protected leave in some family relationships that FMLA does not recognize.
Employees who take leave to care for a domestic partner, a grandparent, grandchildren, or children of domestic partners don’t fall under FMLA. These employees do fall under OFLA.
This means that:
Employees who take family leave for these relationships would not concurrently use FMLA time. They would still have more leave available under FMLA to care for parents, children or a spouse.
Bereavement under FMLA
FMLA does not provide leave time for bereavement.
Therefore, employees who take 2 weeks of bereavement leave under the Family Leave Act do not use up any of their FMLA leave.
Qualifying for Leave
The qualifications for the U.S. Family Medical Leave Act and the Oregon Family Leave Act vary slightly.
This means that
Some employees will qualify for one of the two leaves, but not both. FMLA requires 1 year of service in the last 7 years and at least 1,250 hours worked prior to the leave in the previous year.
OFLA requires 1 year of service previous to the leave averaging 20 hours a week during the year. That would add up to 1,040 hours for the previous year.
As a result,
It’s possible for employees to qualify for OFLA but not FMLA. Likewise, some employees may qualify for FMLA through the hourly requirements, but not have a full 1 year of service previous to the leave to qualify for OFLA.
In addition, OFLA covers employers with 25 or more employees. Therefore, employers with between 25 and 49 employers would have employees that qualify for OFLA, but not FMLA leave.
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Additionally, these businesses have to also comply with Federal Overtime Laws, local sick leave laws, and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws.
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Written by Annemaria Duran. Last updated on July 7, 2017