by Scott Herson-Hord, on Jul 1, 2022 7:45:00 AM
The Oregon Family Leave Act (OFLA) is one of many Oregon Labor Laws that employers should be familiar with. It requires employers with 25 or more employees to provide up to 12 weeks of protected leave / time off.
Oregon Family Leave Act (OFLA) Overview
Employees that qualify as eligible for leave can utilize it to care for themselves or family members. Time off or leave has the right to be taken under OFLA for a variety of cases, including things like:
- Injury, Illness, or some other serious health condition
- School or childcare closures from a statewide public health emergency
- Birth, adoption, or foster placement of a child
- Military deployment or spousal deployment / leave from active duty
- Death in the family or bereavement
Do NOT confuse OFLA with Oregon's Sick Time Law, which requires sick time to be provided by all employers and can be paid or unpaid depending on how many employees the company has and where the company is located.
OFLA, however, is essentially just job-protected (but potentially unpaid) leave, which means an employee can't be terminated or fired as a result of taking time off for any protected leave categories / reasons described below.
Oregon Paid Leave
Oregon will start requiring protected AND paid leave starting in 2023, so it's more important that businesses have an understanding of the legislation and employer requirements for Oregon Paid Leave indicated below in this article.
OFLA Employee Eligibility and Participation Requirements
OFLA Eligibility Criteria
Companies with 25 or more employees in the current or previous year are required to comply with OFLA. While employees in these companies that worked an average of 25 or more hours within 180 days of employment are eligible to receive protected OFLA leave.
UPDATE: Effective January 1st, 2022, employees only need to work an average of 25 hours or more within 30 days of employment before taking leave during a public health emergency (House Bill 2474).
Exceptions to the above include employees who:
- Are eligible for parental leave if they've been employed for at least 180 days, regardless of the number of hours worked.
- Are eligible for Oregon Military Family Leave if they have worked an average of 20+ hours/week, regardless of the employment duration.
- Had a workers' compensation case that resulted in a denied and then accepted claim. The exception also applies to some accepted compensation claims involving multiple employers.
OFLA Qualifying Events or Reasons for Leave
Employees can take time off protected by the OFLA for qualifying reasons or events that include:
- Parental leave - This leave can be taken within a year following childbirth, adoption, or foster placement of a child below 18 years. Parental leave can apply in cases of older children (18+ years) who're incapable of self-care due to physical or mental disability.
- Serious health conditions leave - This time off can be for an employee's own condition or the need to care for a covered family member. Covered family members include spouses, step-parents, biological parents, custodial parents, grandparents, grandchildren, and same-gender domestic partners.
- Pregnancy disability leave - This leave is taken by workers incapable of work following pregnancy or childbirth. The time off encompasses prenatal care too.
- Sick child leave - Time off to care for a child with a mildly "serious" injury or illness needing home care.
- Bereavement leave - Time off to deal with the death of a family member.
- Oregon Military Family Leave - This leave is for spouses whose partners are in military service. The Oregon Military Family Leave applies when the military spouse is called to active duty, notified of a call to active duty, or is on leave from deployment.
Determining OFLA Leave Length
Workers are entitled to a total of 12 weeks of OFLA leave within a 12-month leave period.
An employee may be entitled to 12 additional weeks if the employee has already used 12 weeks of sick child leave or pregnancy disability leave.
Parental leave is completed in a single period. Intermittent leave is permitted for foster placement or adoption.
Employees can take up to two weeks of bereavement leave within 60 days of learning about their loved one's death. Employees can take two weeks for each loved one's passing in a one-year time frame. However, the bereavement leave should not exceed 12 weeks in 12-months. Employees may also take simultaneous bereavement leave.
An employee with a military service partner is eligible for 14 days' leave on a per deployment basis. If their partner is ordered to active duty, notified of a call to active duty, or is on "leave" from deployment.
Two employees can take simultaneous leave if:
- One employee needs to care for the other
- One employee must take a sick child leave while the other is off with a health issue.
- Both employees are sick
OFLA leave time can be reduced if employees cannot work and refuse an offer for different work or lighter tasks in some cases. While employees that work for multiple employers can qualify for OFLA at one workplace while being out injured at another.
Workers must requalify for OFLA leave each leave year, except for:
- Workers or their covered loved ones with critical health conditions
- Employees using their OFLA pregnancy disability leave
- Parents using sick child leave; after their parental leave
- Employees caring for seriously ill covered loved ones, who then die
OFLA Notice Requirements
Employee Notice of Leave
Employees are required to issue a notice 30 days in advance when requesting to use OFLA provided leave – unless it's an emergency. The goal here is for employees to comply with company policy and give the employer time to request the necessary information for qualification purposes.
In an emergency, however, an employee can issue verbal notice within 24 hours of taking leave. If the employee cannot issue the notice themselves, another person can request an emergency leave on their behalf. Once notified, the request can be approved or employers may ask for additional information within five days.
If an employee is on leave and needs additional time, they should provide a notice early on – to allow ample time for request assessment and approval.
In cases of inadequate notice, employers can reduce the unused leave benefits if the time off category falls under OFLA requirements, but not FMLA criteria. This can be no more than the number of days of leave the employee has taken without providing timely notice of leave. Any reduction in these benefits may not exceed three weeks in a year's accrual period. Employees can be disciplined for non-adherence to the leave notice policy, but it must be the same discipline received for other types of time off request notices (like vacation).
For any disciplinary action against employees to take place, they must have had access to the proper 2021 / 2022 OFLA poster. Featuring this poster in the workplace, so employees can understand their rights is a requirement for employers.
Employer OFLA Notices
Upon receiving the request, employers must notify the employee within five days if the leave is approved or not. If not granted, the employer must provide the employee with a written notice detailing why they're ineligible or why their request doesn't qualify for OFLA.
If the leave denial is due to incorrect or incomplete medical verification forms, the written notice should clarify the required corrections. It should be ensured the employee has enough time to make the changes.
OFLA Medical Verification and Treatment Scheduling
Employers may ask for medical verification, except for sick child and bereavement leave. However, for four or more occurrences of a sick child in a given year, verification can be requested.
If requesting a written medical verification request, it's a good idea to highlight possible actions if the employee fails to provide the required information. Employers should also pay for any associated charges to fulfill this request that is uncovered by insurance.
In an emergency, the employee should still produce medical verification within 15 days. If the worker fails to hand in the needed information, employers can deny the leave until they turn in the paperwork. However, the "leave" cannot be delayed if the employee has already started their emergency time-off; the leave should be highlighted as provisionally approved.
With the medical verification form, more information can typically not be required from an employee's healthcare provider, unless the employee or their covered family representative gives permission. Also, two or more verifications can not be requested within 30 days unless there are reasons to doubt the leave's validity or there are significant changes in circumstances since the last verification.
Employers are entitled to a second medical opinion except for bereavement and sick child leave. If the two medical opinions contradict, the medical professionals in question must agree on a third party to provide a third opinion on the matter. Copies of any and all medical opinions should be provided to the employee within five days of request.
If the employee cannot provide the needed medical verification forms due to a "serious" health condition a work release form can be requested from the healthcare provider prior to an employee returning to work.
OFLA Job Protection Requirements
Employers must reinstate employees, upon returning from Oregon family leave, to their former position or its equivalent if the job no longer exists.
In case of the latter, and an equivalent role is unavailable at the current location, an employee can be relocated within 20 miles of the original worksite.
Employees can also be transferred under schedule reduction or intermittent leave to accommodate the time off if:
- The transfer is short-term
- The employee accepts willingly
- The change complies with a collective agreement
- Transfer doesn't discourage time-off
- No other option is available
NOTE: OFLA "leave" in this case = hours "normally" worked – actual hours worked.
Employees can also be transferred to recuperate from critical illness if:
- The transfer is short-term
- The employee accepts willingly
- The move doesn't deter leave
- The transfer complies with bargaining agreements
- The change doesn't create undue hardships
NOTE: In such a case, the employee retains their rights associated with their original position, unless all OFLA leave is used within the employer's leave year - including the 12 weeks provided in the new role.
Workers on OFLA leave are still subject to non-discriminatory employment actions.
Paid Leave Oregon / Oregon Paid Family Medical Leave Insurance (PFMLI)
Paid Leave Oregon, which may also be seen referred to as Oregon Paid Family Medical Leave Insurance, will come into effect in 2023.
Paid Leave does not replace any existing Oregon sick time or leave programs, such as OFLA, FMLA and Oregon sick time. Instead, paid leave often, and must run, concurrently with these programs if the employer meets eligibility thresholds to comply. However, there may be some instances where an employee is eligible for OFLA but not Paid Leave, and vice versa.
Any company with employees, and even some sole proprietors that choose to participate, must change payroll processes to account for calculating and funding contributions to the program on behalf of the employee and / or employer.
Payroll Requirements for Oregon Paid Leave
Starting January 1st, 2023, employers and employees are required to start contributing toward Oregon's paid leave fund, which will be calculated as an additional state payroll tax.
Payroll processes should be adjusted accordingly prior to January 1st in order to be ready to submit accurate contributions at the close of the first pay period in 2023. So, it's important to start testing calculations now to see how this will impact company budgets and employee paychecks.
Here are some important details that employers should be aware of for payroll and contributions:
- The contribution / payroll tax rate for employers and employees will be 1%
- Employers will contribute 40% of the 1% payroll tax
- Employees will contribute 60% of the 1% payroll tax
- Exception: Employers with fewer than 25 employees are not required to pay the employer portion of the tax, but must still collect and remit the employee portion
- All contributions accumulate in a state fund, which will be used to cover employee pay for paid family medical leave for the program.
- This means when an employee has time off for Oregon Paid Leave, employers are necessarily not responsible for paying wages. This is tracked, managed, and ultimately paid by the state and state fund.
- The contribution / payroll tax rate will be set annually and cannot exceed 1%
Something worth noting is that employers may pay the employee portion and consider it an employee benefit.
Rather than putting this process in place, Oregon.gov suggests alternatively reaching out to an Oregon payroll company to implement these changes on behalf of the employer.
How Should Employers Manage Oregon Paid Leave?
There are several steps that employers can take to prepare for how to handle the state's new state paid leave. As of now, aside from payroll adjustments mentioned above, companies need to educate employees about Oregon's Paid Leave program.
The easiest way to handle the education by making the Paid Leave Oregon notice available to employees along side or via an updated Oregon Labor Law Poster. Staying up-to-date with education and posting requirements with a labor law posting compliance solution subscription that covers both onsite and remote employees is an effective way to manage labor law changes like this moving forward.
Although the Oregon Paid Leave payments to employees are handled by the state, employers still need to managing paid leave by following a documented process to stay compliant with all of Oregon's sick time laws. Rather than leveraging a manual process to document, administer, and manage sick time and leave, companies often turn to time and attendance software in combination with absence and leave management compliance functionality.
Employee Use of Oregon Paid Leave
Employees are able to apply for paid family leave on September 3rd, 2023.
Employers are, however, required to allow the employees to return to their job as long as they have worked for the employer for more than 90 days prior to taking leave.
Although information may be somewhat limited beyond these this, employers looking to learn more about he new Oregon Paid leave requirements can find it on the Paid Leave Oregon Website.
OFLA vs FMLA
The OFLA expands on and is in addition to the nationwide requirements for the Family and Medical Leave Act (FMLA), but if employers meet the eligibility requirements, compliance is required for both.
Any time off under FMLA also falls under OFLA if the worker is eligible for the OFLA leave. Generally, OFLA and FMLA have consistent provisions. Therefore, either leave can be granted. However, the focus should always be on the leave that's most beneficial to the employee.
Employee Benefits and Health Insurance
Employers must offer health insurance coverage, provided the worker is contributing to their portion of premiums. Employee premiums are deducted via payroll deduction whenever available. In the case of unpaid leave, the employee should self-pay their percentage for health insurance premiums. The same goes for paid optional benefits.
If the employee fails to return to work after an OFLA / FMLA leave, they may be required to reimburse for the share of health premiums an employer paid on their behalf when on leave.
Employees may use paid accruals during OFLA leave. This includes accrued paid sick time, personal days, vacation, or other types of time off in lieu of vacation for OFLA leave. When that happens, the paid leave is protected under OFLA leave and counted as a protected leave entitlement.
An employer may also require employees to use accrued paid time off for OFLA leave. They may also determine the order in which paid time off must be used (as long as this is defined in the employer policy / employee handbook).
Employees cannot go on and off unpaid leave status unless on short-term disability benefits via insurance.
OFLA Changes & Deadlines
On June 8, 2021, Oregon's Governor Kate Brown signed House Bill 2474 into law, amending and expanding OFLA provisions. This includes the removal of gender-specific language, leave entitlements, and eligibility amid public health emergencies, and for employees reemployed following a separation from employment or temporary cessation of work, like a closure of the business.
These amendments were effective on January 1, 2022. Employers should ensure OFLA policies & forms are up-to-date in order to comply with the following new requirements.
Removal of Gendered Language
The OFLA amendments removed gendered language from provisions relating to childbirth, pregnancy, and the associated leave. The statutory provisions only referred to women (female employees.) With the updates, anyone eligible can take time off for injury, illness, and other conditions relating to pregnancy and childbirth, regardless of gender.
OFLA Eligibility for Reemployed Workers
For employers that re-employ an employee following a temporary interruption of employment or cessation of work, eligibility rules are as follows.
For employees returning to work or being reemployed within 180 days at the time of their temporal work cessation:
- Employees already eligible for OFLA leave prior to the separation from employment are eligible for leave immediately upon return or reemployment.
- Employees NOT already eligible for OFLA leave prior to the separation from employment will qualify to include the credit for time worked before the work cessation.
- If the employee returns to work in a timeframe that's past 180 days after cessation from work, they must reestablish eligibility for OFLA leave anew and won't receive credit for prior service.
- If the employee returns to work after 180 days, they must reestablish eligibility for OFLA leave anew and won't receive credit for prior service.
OFLA Amid a Public Health Emergency
OFLA Employee Eligibility
The amendments expanded OFLA leave provisions amid the proclamation of a public health emergency. In order to be eligible:
- The employee must be employed for at least 30 days before the leave starts
- The employee must have worked an average of 25+ hours per week within the 30 days.
OFLA Leave for Child Care Due to Closures
The amendment will also allow for leave for an employee's child needing care due to the closure of school or child care provider following the public health emergency.
While employers may not request medical verification in cases of a sick child leave, employers can ask for:
- Name of the child needing home care
- Name of care provider or school that's subject to closure
- Employee statement clarifying no other person is willing and able to care for the kid
- Employee statement highlighting the existence of specific circumstances warranting the worker to provide home care for kids above 14 years.
Tracking OFLA and Other Accrued Time Off
With the new updates and OFLA expansions, tracking accrued time off and the usage of that time off or leave is essential. Time and attendance software helps review and approve time-off requests effortlessly. It also helps track employees paid or unpaid time off balances. While leave management software or solutions are able to track the more nitty-gritty details and help ensure compliance with FMLA, OFLA, and any other state-specific leave laws.
Using a payroll and HR company like GNSA can help institute and streamline processes and achieve compliance as well. Employers can also go a step further by subscribing to a labor law poster service as well, for easy, minimal-risk compliance.
Guest Author: Scott Herson-Hord
Scott Herson-Hord is the CEO of Great Northern Staff Administrators (GNSA), an Oregon payroll and HR services company that specializes in serving small to mid-size businesses with administrative solutions to streamline back-office processes from benefits to human resources. Starting his career in finance and working more than 10 years as a controller for various companies, Scott leveraged this experience over the next 22 years with GNSA to become one of the pacific northwest’s foremost experts in human capital management (HCM).