Overview of Oregon and Federal Family Medical Leave Law

Introduction

Many Oregon employees are entitled to protected family leave under state and federal law.  Family leave laws are among the more complicated statutory protections provided to employees (and also complex for employers to properly administer).  You should contact an experienced Oregon FMLA lawyer if you have questions in this area.  I have handled many FMLA and OFLA matters and frequently provide advice and consultations as well as litigate in this area.   If you have questions about any aspect of family medical leave, please feel free to use the contact form or you may email:  jim@worklaw.io  Or call:  (503) 841-6722 ext. 1

Determination of whether an employer and its employees are covered by the state and federal family leave laws is governed by minimum number of employees and minimum employment tenure requirements.  These eligibility requirements acknowledge the reality that administration of protected leave laws could be a challenge for smaller employers, who are unlikely to have the resources or staffing flexibility to grant job protection to employees who are away from work for up to 12 weeks at a time.  Therefore, just as federal civil rights laws have minimum employee threshholds for coverage, the federal Family Medical Leave Act ("FMLA") and Oregon Family Leave Act ("OFLA") apply only to employers of set minimum employees (FMLA - 50 / OFLA - 25).  Employees must also work for a significant time prior to eligibility for an average of 25 hours per week.  (FMLA - 12 mos/1,250 hours worked / OFLA - 180 days/25 hrs/wk average).  Family leave under both state and federal law is unpaid leave.  Note, however, that in the summer of 2019, Oregon passed a paid family and medical leave law, with employees eligible for its benefits beginning January 1, 2023.  

Smaller employers in Oregon, however, must be aware of their requirements under Oregon's Sick Leave Law (which may be paid leave if the employer has at least 10 employees, or 6 employees in the Portland area).  Indeed, in some employment circumstances, family medical leave laws will overlap with not only state sick leave but with the Americans with Disabilities Act ("ADA") and workers compensation law.   Overlapping requirements under these laws are among the more complicated areas of employment law and properly understanding and handling these issues requires consulting with an experienced Oregon employment attorney.          

This article provides a basic overview Oregon employee entitlement to protection under state and federal family medical leave statutes.  It is not legal advice.  You should contact an Oregon FMLA lawyer if you need legal advice on the FMLA or on Oregon's counterpart family medical leave law, the OFLA.   

1.  What Oregon Employees Are Entitled to Protected Family Leave?

There are overlapping state and federal family leave laws with which Oregon employers of a certain size must comply.   Employers and their employees are covered by state and federal family leave laws as follows:

  • OFLA - the employer must have 25 or more employees; the covered employee must have been employed during the 180 calendar day period preceding leave and must have worked at least on average 25 hours per week.  ORS 659A.150 - 659A.186   The Oregon Military Family Leave Act ("OMFLA") has certain different prerequisites and terms, including that the employee must work only at least 20 hours a week and there is no length of employment requirement.  ORS 659A.090 - 659A.099
  • FMLA - 50 employees within a 75 mile radius of the employee's worksite, 1 year of employment, with 1,250  hours worked during the 12 month period.  29 U.S.C. Sec. 2601 et seq and 29 C.F.R. Sec. 825 et seq  The FMLA also includes extended leave for military caregivers.  

2.  When Are Oregon Employees Entitled to Protected Family Leave?

Employees who are qualifed for family leave under state or federal law, as described above, are entitled to take protected family leave for parental leave (birth/adoption/foster-placement), to care for the "serious health condition" of the employee or of the employee's family member as defined, for pregnancy leave, sick child leave, or bereavement leave.  While only OFLA allws for sick child leave and bereavement leave, because OFLA has lower threshhold eligibility requirements (25 employees rather than 50 and 180 days employment rather than 12 months), an Oregon employee who is qualified for family leave does have the benefit of the more protective provisions of Oregon state law.  Oregon military families are also entitled to leave when a spouse or same-sex domestic partner is deployed or on leave from active military duty.  See Bureau of Labor and Industries Technical Assistance for Employers Oregon Family Leave Act

3.  How Much Leave Is Available?

Generally, the employee can take up to 12 weeks of protected leave under both state and federal law.  The leave can be taken at one time, or in appropriate circumstances, can be taken intermittently.  Under OFLA, employees are also entitled to 2 weeks of bereavement leave, which are credited against the 12 total weeks available.  Additional leave is available potentially if an employee is entitled to leave for pregnancy disability (potentially 24 weeks available).  This article does not focus on military caregiver leave, but note that additional leave is also available if an employee is entitled to military caregiver leave under Oregon state law.  

4.  What Protections Are Provided by the Family Leave Laws?

Employee's family leave is unpaid leave, but employees are entitled to continuation of group health insurance benefits.  Furthermore, eligible family leave under both state and federal law is protected leave, in that the employer must return the employee to their former job or an equivalent position if the former position no longer exists.  I have seen several instances in which an employer claimed that a position was no longer in existence, and have resolved by settlement such claims where it appeared that the elimination of the position may have been used to simply get rid of an employee with the duties the employee had been performed were temporarily shifted to others.   

5.  Employee and Employer Notice of the Need for Leave and Employer Request Medical Certification?

Employees are required to provide 30 days notice of the need for leave, unless impracticable to do so or the leave is an emergency.  Employee notice need not be in writing, but the best practice on the employee's part is to document requests for leave and other leave-related issues in writing.  Employers must notify employees in writing of the availability of family leave within 5 days of the employee's request for leave or of the employer's determination that the leave may qualify for OFLA or FMLA leave protection. 

The employer may request that the employee obtain medical certification on an appropriate form to support the need for family medical leave.  This first certification is at the employee's expense.   If the employer requests a second or even third opinion, those opinions will be at the employer's expense.  See U.S. Dept. of Labor Fact Sheet #28G   

Like other issues addressed in this brief article, litigation under the FMLA or OFLA can occur concerning medical certification should the employer take adverse action against an employee who in good faith is attempting to provide medical certification.  

6.  The Causes of Action and Remedies for Violation of State and Federal Family Leave Laws

Properly pleading violations of FMLA/OFLA is key to success in litigation under the family medical leave laws.  An Oregon FMLA and OFLA attorney can advise you of the full range of claims and relief available under these laws.  A brief summary of the potential claims and remedies is set forth below.  

Interference claims:  Employers can be liable for remedies and injunctive relief for interfering with an employee's right to take protected leave under the FMLA or OFLA by denying a benefit to which the employee was entitled.  It is not necessary to establish intent in order to state a claim for FMLA or OFLA interference.

Retaliation/Discrimination Claims:  Employers can also be liable for violating the FMLA or OFLA if the employer retaliates (or discriminates) against the employee for the employee's protected activity, opposing any practice made unlawful, in connection with FMLA or OFLA leave.  Claims under OFLA must be brought within 1 year and claims under the FMLA must be brought within 2 years (or 3 years if the violation is willful).

Remedies:  Remedies under state law include but are not limited to recovery of lost wages, costs, and attorney's fees. 

Remedies under federal law include but are not limited to lost wages (including future lost wages if reinstatement is no feasible), liquidated damages (which are 2 times the wage loss), interest, costs, expert witness fees, and attorney's fees.   

Injunctive relief, such as reinstatement, is also potentially available under both state and federal law.  


7.  Conclusion

The application of family leave laws to specific facts in your workplace can be complex, as is often the case with employment law matters.  Among other family leave issues, I have litigated and negotiated resolution of family medical leave issues involving the employee's return to the same or similar job after leave for the employee's own serious health condition, an employee's right to use leave for care of a sick child and and employee's termination for taking leave to care for a sick parent.  

I recommend a consultation with an experienced Oregon FMLA lawyer and Oregon OFLA lawyer if you have questions about Oregon or federal family medical leave laws.