Employer Insights

Oregon Family Leave Act (OFLA): A Comprehensive Guide for 2021

by Scott Herson-Hord, on Sep 28, 2021 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. 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. 

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 you'll learn about below.  

However, Oregon will start requiring protected AND paid leave starting in 2023 through OFLA, so it's more important now than ever before to be ready with absence and leave management solutions that work in tandem with your Oregon payroll service

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 are eligible to receive protected OFLA leave.

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 is entitled to 12 more weeks of sick child leave or parental leave for pregnancy disability leave, if eligible. 

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

You can reduce OFLA leave time if your employee cannot work and refuses an offer for different work or lighter tasks. Workers with multiple employers can qualify for OFLA at one workplace while 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 

Exempt employees include professional workers, salaried executives, and administrative employees under the Fair Labor Standards Act.  

OFLA Notice Requirements 

Employee Notice of Leave 

Employees are required to issue a notice 30 days in advance – 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 are 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, you can deny the leave until they turn in the paperwork. However, you cannot delay the "leave" if the employee has already started their emergency time-off; you can only highlight the leave as provisionally approved. 

With the medical verification form at hand, you cannot inquire more from the employee's care provider; unless the employee or their covered family representative gives permission. Also, you cannot ask for two or more verifications within 30 days. That's unless you have reasons to doubt the leave's validity. Or there are significant changes in circumstances since the last verification.  

You're 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 give you a third opinion. (Give copies of all medical opinions to the employee within five days of request.) 

If the employee cannot provide the needed medical verification forms due to a "serious" health condition, ask for a work release form from their healthcare provider before returning to work.  

OFLA Job Protection Requirements

You must reinstate workers to their former position or its equivalent if their job no longer exists. In case of the latter, and an equivalent role is unavailable at the current location, you can relocate the employee within 20 miles of the original worksite.  

You can transfer employees 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 such case = hours "normally" worked – actual hours worked.

You can also transfer employees to recuperate from critical illness if:  

  • The transfer is short-term
  • They transfer 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.  

OFLA vs FMLA

The OFLA expands on and is in addition to the nation-wide 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. You can, therefore, grant either leave. The focus should be on the leave that's most beneficial to the employee. 

Benefits

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 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 you paid on their behalf when on leave.  

Paid Leave

Employees may use paid accruals during OFLA leaveThis 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.

Upcoming 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 will take effect on January 1, 2022. Employers should update OFLA policies & forms 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. 
For employees returning to work or being reemployed after 180 days at the time of their temporal 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 track the more nitty gritty details and help ensure compliance with FMLA, OFLA, and any other state-specific leave laws.  

Changing out your Payroll and HR vendor to a company like GNSA will help streamline processes and achieve compliance as well. Companies like GNSA help with solutions for employee operations that help reduce labor costs and save time, which enable their clients to focus on the business of their business.
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Topics:ComplianceOregon Labor LawsState Labor Laws

Did You Know...

If your Oregon labor law posters have not been replaced in the workplace as of the July 1st, 2021 effective date, you're out of compliance.

Changes have taken place for sick time and family leave laws this year and required updated notices / posters to be hung. 

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