Oregon Family Leave Act (OFLA) - Legislative Guidance

Table of Contents

Overview

Oregon Family Leave Act(OFLA) provides eligible employees unpaid job protected leave for up to 12 weeks per year for pregnancy disability, to care for a child with a medical condition or due to childcare or school closure, or bereavement leave for a family member. Bereavement leave is available in 2 week increments and is only available for a total of 4 weeks in a year.

OFLA is administered by the Bureau of Labor and Industries(BOLI), decisions for OFLA are made by the employer. OFLA will never run concurrently with Paid Leave Oregon(PLO). An employee is eligible for both OFLA and PLO will need to choose and confirm their option with their employer to ensure OFLA is administered correctly by the employer.

AbsenceSoft Policies

Oregon Family Leave Act is configured in AbsenceSoft with the policy code below:

• Oregon Family Leave Act(7/2024) OR-OFLA

• Oregon Family Leave Act for Airline Flight Crew OR-OFLA-FC

Legislation codes and statues

The information presented in the guidance relates to the following legislative codes, links to the specific legislation can be found within the ‘Resources’ section of this document. :

• Oregon Revised Statues Chapter 659A, Section 150-186 (O.R.S. §659A.150-186)

Employer Coverage

An employer who has 25 or more employees working in the state of Oregon. To determine whether an employer has 25 or more employees, count how many employees worked during 20 or more calendar workweeks in the current year, or the year before the employee takes leave.

Employee Eligibility

Other than public emergencies, employees are eligible for OFLA if they work in Oregon for a covered employer and worked 180 days for their employer, averaging 25 working hours a week in 180 days. The 180 days worked includes any time the employee remained on the payroll even if the days were unpaid or paid. The determination of 180 days should be met prior to the employee’s first day of leave.

A public health emergency declared by Oregon, lowers the 180 requirements to 30 days, but within those 30 days, the employee should still be averaging 25 hours a week.

Airline flight crew must meet the following definition to be eligible:

• Employed for at least 12 months;

• Paid 60% of applicable monthly guarantee; and

• Worked or been paid for at least 504 hours in the preceding 12-month period.

Qualifying Absence Reasons and Duration

The OFLA year is measured on a Sunday rolling forward method, and allows up to 12 weeks of leave depending on the qualifying absence reason except for bereavement reasons.

Bereavement is limited to a maximum of 4 weeks, and can be utilized in up to 2 week increments for each loss of a family member.

Family Leave

• Bereavement: To attend a funeral, make arrangements necessitated by death, or grieve. Leave must be used within 60 days of the notice of death was given to the employee.

• Care of Child due to Place of Care/School Closure: During a public health emergency, covers a child under the age of 14(14 can be covered if signed statement provided by child’s parent), when school or child care provider is closed.

• Sick Child: Covers a child(18 or younger unless incapable of self-care) for a serious or non-serious injury, illness, or condition that requires home care.

Medical Care

• Pregnancy/Maternity: Pregnancy related-conditions, injury or illness related to pregnancy and/or childbirth, termination, fertility/infertility treatments.

Qualifying Family Member

• Spouse or domestic partner*;

• Child (biological, adopted, foster or stepchild) of the employee, spouse, or domestic partner, under 18 unless incapable of self-care;

• Parent (biological, adoptive, foster, stepparent, or legal guardian) of the employee, spouse, or domestic partner, or the parent’s spouse or domestic partner;

• Sibling or stepsibling of the employee, spouse, or domestic partner;

• Grandparent of the employee, spouse, or domestic partner;

• Grandchild of the employee, or the grandchild’s spouse or domestic partner;

• Any person who has a family-like (affinity)relationship with the employee

*Only spouse or domestic partner applies in military situations.

How Leave Can be Taken

Employees may take leave consecutively, intermittently, or on a reduced schedule for any qualifying reason.

• Consecutive leave: A continuous, uninterrupted period of leave taken for a single qualifying reason.

• Intermittent leave: Leave taken in separate, sometimes unpredictable, blocks of time (either hours, days or weeks) between the start and end dates of leave. Employers can limit the use of intermittent leave to care for a family member when the employee requests leave in two or more nonconsecutive intervals.

• Reduced schedule: A reduction to the employees’ work schedule that results in either fewer hours per day or fewer days per week. A reduced schedule is consistent from one week to the next.

Certification Requirements

Employers may require medical certifications for certain reasons under OFLA. Requesting medical documentation for bereavement, or Care of Child due to Place of Care/School Closure is prohibited under the law.

Employers must receive the certification before the leave commences if proper employee notice is provided. Where notice is not provided and the employer requests medical documentation, the employee has 15 day from the date of the request to provide.

Below are some certification considerations:

• Pregnancy disability verifications should be paid by the employer and can be done using fringe benefit funds contributed entirely by the employer, or the employee is subject to payment for verification if the certification is required by a CBA, state or federal statue or city or county ordinance.

• Second and third opinions are not allowed;

• Recertifications can be required on a reasonable basis;

• For sick child leave, employers may only ask for certification for OFLA when the employee has taken sick child leave on three separate days within a year period, and must be paid for by the employer.

• Care of child due to place of care/school closure verifications are allowed but can only include the following:

  • Name of child

  • Name of childcare provider or school

  • Employee statement indicating there is no other care available

  • If child is over the age of 14 an employee statement that special circumstances exist²

  • Written request for this information must be requested by the employer within 5 business days of the employee’s request

• Bereavement attestation of affinity relationship may be requested.

  • BOLI provides a model form for use or the employer may create their own which requests the employee to attest to the relationship being equivalent to a family relationship.

  • Employers must provide a form to the employee to complete if the employer requires attestation.

  • Employers cannot seek additional verifications of bereavement leave.

Insufficient certifications should be communicated in writing to the employee stating the deficiencies and giving the employee a reasonable time to cure insufficient information.

Employers cannot contact the provider when medical verification is signed by a health care provider. The employer may use their own healthcare provider to reach out to the employee or employee family member’s health care provider, with permission, to validate or provide clarity on the documentation.

Pay and Benefits

Leave is unpaid. Where state pay benefits are involved with other law interactions, such as mandated sick pay, employers will want to consider where PTO/employer pay benefit application should occur.

Use of Paid Time Off (PTO)

• Employees may use accrued paid time off including sick time, but the employer can determine the order in which the employee uses the time off as long as notice is provided to the employee the employer is deciding the order. Employers must notify the employee prior to the commencement of leave, or for unforeseeable circumstances within 5 business days of the employee’s notification for leave.

• Employers should not discourage employees from using sick leave.

Job Protection

OFLA protects employees’ jobs while on leave for employees. This means employees are entitled to return to the same position following leave. If the position no longer exists, employees must be restored to any equivalent position, including pay, benefits and other employment terms.

Other Protections

Employees who invoke their right to OFLA are protected from discrimination and retaliation. Employers are prohibited from denying leave or interfering with employee rights under OFLA.

Any health information provided for OFLA benefits is confidential and can only be released with employee permission, unless required by law.

Benefits

Employees keep the same health care benefits during leave. Employees must continue to pay their portion of premium costs while on leave.

If the employer elects to pay the employee’s share of benefits, the employer may recoup payments in subsequent checks upon the employee’s return, so long as the amount is not more than 10% of their gross pay each pay period.

Interaction with Other Laws

Where an employee meets the definition of family member, qualifying absence reason, or serious health condition, the state and federal laws may interact. Accommodations that are not leave related, would not run concurrently with other state or federal leave laws.  

Family and Medical Leave Act (FMLA)

OFLA runs concurrently with FMLA where applicable.

Oregon Pregnancy Disability Leave (ORPDL)

ORPDL is an accommodation and discrimination law that may run concurrently with OFLA in some circumstances.

Paid Leave Oregon(PLO)

PLO cannot run concurrently with OFLA. Employees may choose which benefits to apply for if they are eligible under both programs.

Oregon Military Leave Act (OMFLA)

OFLA entitlement may run with OMFLA when the employee is eligible for OFLA and has remaining entitlement available under OFLA. However, OFLA cannot be taken for reasons that are applicable under OMFLA.

Pregnant Workers Fairness Act(PWFA)

PWFA may run concurrently with OFLA in some circumstances.

Worker’s Compensation

For an employee taking leave for the pregnancy/maternity absence reason, if an employee is receiving worker’s compensation benefits, the employee is not eligible for OFLA unless the employee refuses a return to work of light duty/modified duty.

Employee and Employer Responsibilities

Employee Responsibilities

• Foreseeable Leave: notify employer at least 30 calendar days before taking leave (unless school closure due to public emergency stipulations);

• Unforeseeable Leave: notify employer within 24 hours for unplanned leave (unless school closure due to public emergency stipulations);

• Employee’s notification to employer regarding childcare closure are dependent on situation: no prior notice if there is no declaration by the Governor or notice to employer is required in advance when the Governor has made a public health emergency declaration at least 30 days prior to the employee’s request for leave.

• Inform employer, if employee is eligible for both PLO and OFLA, which program the employee wants to apply.

• Follow employer policies and procedures for time-off reporting; and

• Provide verification of leave.

Employer Responsibilities

• Posting requirements are as follows and all posters must be a place that is conspicuous/frequented by employees:

  • Post notice in every establishment of the employer where employees are employed.³

  • Notice is provided by BOLI

• Provide notice of OFLA employee eligibility within 5 business days, which should include:

  • Eligibility status either eligible or ineligible;

  • If the leave does not qualify for OFLA;

  • At least one reason the leave does not qualify or the employee is ineligible;

• If requesting a certification form, pay costs associated with obtaining forms unless employee is completing required forms for state or federal purposes such as the PLO verifications for state benefits.

• Notify the employee when leave is designated as OFLA

• Disclose in writing if medical verification is required and what will happen if the employee fails to present the requested forms.

• Determine the order of employer pay benefits and inform the employee if the employer is going to determine the order in which the employee can use employer pay benefits.

Resources

BOLI website: https://www.oregon.gov/boli/workers/pages/oregon-family-leave.aspx

Oregon Legislation: https://www.oregonlegislature.gov/bills_laws/ors/ors659a.html

¹ O.R.S. §659A.168

² O.R.S. §659A.168

³ O.R.S. § 659.A.180