Transcript Document

Family Leave
Roundtable Discussion
Administrators of Family Leave
Presented by:
Janie McCollister
Topics
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Covered Employers
Posting Requirements
Employee Eligibility
Family Leave Year/Length of Year/Counting Hours
Intermittent Leave
Domestic Violence Leave
Notifications
Qualifying Events
Serious Health Condition
Certification
Health Care Providers
Benefits During Leave
Pay While on Leave
Fit for Duty
Reinstatement Rights
Blended Disabilities
Administrative Tips
On-Line Resource Documents
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Administrator’s PowerPoint
Supervisor’s PowerPoint
Supervisor’s Notice Template
Family Leave Request Template
Certification Template
Employer’s Response to Employee
Fit for Duty Template
Job Description Template
Healthcare Benefits/Life/LTD Information
Leave Year Tracking Examples
– calendar, rolling forward, rolling backward
Administrator Hot Topics
 Which family leave topics do you want to
focus on?
 What are the most common issues you
are dealing with?
 What is working?
 What isn’t working?
COVERED EMPLOYERS
50+
All
25+
6+
15+
Covered Employers
 Federal Family Medical Leave (FMLA) &
Military Family Leave
– All public sector employers
 Employees only get protected leave if
employer has 50+ employees
 Oregon Family Medical Leave (OFLA)
– 25 or more employees
 Oregon Military Family Medical Leave
(OMFLA)
– All public sector employers
Public Safety Reserves
 For family leave purposes: If you pay your
Police or Fire Reserves a stipend, you
may have to include them in your
employee count
Conservative Risk Management Practice:
 If stipend is equal to or greater than 20%
of average full-time wage, then count them
POSTING REQUIREMENTS
Posting Requirements
OFLA
FMLA
• Must post OFLA requirements
• OFLA poster must be displayed in
every “establishment”
• May not reduce OFLA leave or take
disciplinary action based on
employee’s failure to follow
employer’s/OFLA notice requirements,
unless OFLA required notices posted,
or employer can establish employee
had actual knowledge of notice
requirement
• FMLA poster must be prominently
displayed, even if there are no eligible
employees
• If eligible employees, must also
include in employee handbook, or
other written employee guidance
• $100 Civil penalty may be assessed
for failure to post
• Electronic posting sufficient, if all
other posting requirements sufficient
• No disciplinary action may be taken
for failing to furnish advance notice, if
employer failed to post
EMPLOYEE ELIGIBILITY
Employee Eligibility
OFLA
FMLA
Worked 180 days immediately
preceding leave date; and
At least 12 months
• “name on the payroll”
• (non/ or consecutive)
• 7 year break in service look-back
(military leave excepted); and
Worked average of 25 hours/week
(hours worked + military leave) during
12 months prior to leave
Worked minimum of 1,250 (hours
worked + military leave) during 12month period preceding leave; and
Parental bonding leave (serious health
condition leave): minimum hours not
applicable
OMFLA: worked average of 20
50 or more employees within 75 miles
hours/week; no 180-day waiting period of employee’s worksite
OFLA/FMLA Eligibility Gap
During first year with employer:
 End of first 180-days…
12 OFLA weeks available
 End of first 12 months…
12 FMLA weeks available if…
12 OFLA weeks exhausted
Temporary Employees
 FMLA requires employers to count
temporary or leased employees in
determining whether employer is covered
by FMLA
 OFLA does not address temporary
employees; OFLA should be construed
like FMLA, to extent possible
 Temporary Employee may have
reinstatement rights
FAMILY LEAVE YEAR
LENGTH OF LEAVE YEAR
COUNTING THE HOURS
Length of Leave
 Protected leave absences can’t be
counted against the employee
 Employee has right to reinstatement at
end of leave
Length of Leave
 If same family member definition for FMLA
and OFLA
– Deduct leave from both FMLA and OFLA 12
week bank
 Different family member definitions
– Additional 12 weeks for family members
defined only in OFLA
Length of Leave
 Parental leave may cross over two family
leave years
– Parental Leave must be completed within 12
months following birth or adoption/ placement
of a foster child
Length of Leave
 OFLA Pregnancy Leave
– 12 additional weeks
 OFLA Sick Child Leave
– 12 additional weeks
 Workers’ Comp time loss
– Can deduct from FMLA 12 week bank
– OFLA: Can’t deduct
 Exception: Refusal of a Light Duty job offer
Length of Leave
 (FMLA) Military Family Leave
– Caregiver:
26 weeks
May crossover more than 1 family leave year
– Qualifying Exigency:12 weeks
Within regular family leave year
Rest and Recuperation Leave 15 days max
Counting the Hours
 Deduct full weeks when full weeks missed
– Includes holidays unless employer closes for
full week
 Convert weeks to hours for partial weeks
 Track leave in increments as small as pay
increments
Counting the Hours
 Part-time employees
– Full weeks deducted
– Pro-rate
Convert to hours for partial weeks, using normal
weekly hours
If hours vary, average hours for 12-months
preceding leave use
INTERMITTENT LEAVE
Intermittent Leave
Leave Type
OFLA
Intermittent Leave?
FMLA
Intermittent Leave
Parental
One block, unless policy
allows otherwise
Same as OFLA
Employee/Family
Member serious health
condition
Intermittent/reduced
work schedule when
medically necessary
Same as OFLA
Pregnancy
Disability/Prenatal Care
Intermittent/reduced
schedules as necessary
Same as OFLA
Sick Child Leave
• (Non-serious health
condition
Time as needed
NA
Intermittent Leave
Leave Type
OFLA Intermittent
Leave?
FMLA Intermittent
Leave?
Qualifying Exigency
To extent need for
OMFLA leave is also
covered by FMLA
“qualifying exigencies”
Refer to 29 CFR 825.126
for list of qualifying
exigencies
Servicemember family
leave
OMFLA may be taken
intermittently
Refer to 29 CFR 825.127
for leave available to
care for servicemember
who suffers serious
injury or illness in line of
duty on active duty
Intermittent Leave
 Don’t have to grant for parental leave
 Must be given when medically necessary
 May not require employees to use more
leave than requested
 Only count hours actually used for family
leave
Intermittent Leave
 If employee agrees…can temporarily
transfer to another position
– Sign an agreement, to reinforce the transfer is
temporary
 May designate entire period as family
leave, if impossible to work a partial shift
– Unable to enter or leave
– Few jobs would qualify for this
DOMESTIC VIOLENCE LEAVE
Domestic Violence Victims
 Leave is for…
– Domestic Violence Victims
– Sexual Assault Victims
– Stalking Victims
 Covers all public sector employers
Domestic Violence Victims
Eligible Employee
Employed on date leave begins and who:
 Is a victim of domestic violence, sexual assault, or
assault; or
 Is a parent or guardian of minor child or dependent
who is victim of domestic violence, sexual assault, or
stalking
Domestic Violence Victims
 Military periods of uniformed service must
be counted in determining eligibility
 Safety of other employees may be taken
into consideration; review the “imminence
of the threat”
Notifications
PBS
Designating Family Leave
 What is Employer’s policy?
– Do you designate the leave if the employee
doesn’t request it?
Employee Notice Requirements
Nature of Leave
OFLA
FMLA
Foreseeable Leave
Employer may require up Employee must provide
to 30 days advance
at least 30 days advance
written notice
notice if need for leave is
foreseeable.
Foreseeable Leave
Less than 30 Days in
Advance
If 30 days notice not
possible, employee must
give as much notice as
practicable. Written
notice requirements
should be flexible
Employee must give
notice as soon as
practicable considering
the circumstances—
within two business days
of when need for leave is
known. Take into
account individual facts
and circumstances
Employee Notice Requirements
Nature of Leave
OFLA
FMLA
Unforeseeable or
Emergency Situations
Required to give oral or
written notice within 24
hours before or after
starting leave. Employer
may require written
notice within three days
after the employee’s
return to work
It should generally be
practicable for the
employee to provide
notice of unforeseeable
leave within time
prescribed by employer’s
usual and customary
notice requirements
applicable to such leave
Consequence for
Failure to Give Timely
Notice or Foreseeable
Leave
Employer may reduce
employee leave by up to
three weeks or take
disciplinary action
consistent with
employer’s policy
Employer may delay
coverage up to 30 days
after notice was received
Employer Notice Requirements
OFLA
When employee
requests leave, or
employer has
knowledge:
Must notify the
employee within five
business days, unless
extenuating
circumstances
FMLA
When employee
requests, or when
employer has
knowledge: Must notify
within five business
days, unless extenuating
circumstances
Same qualifying reason: Same qualifying reason:
Notify one-time during 12 Notify one-time during 12
month period
month period
Concurrent
OFLA and FMLA Leave
Follow FMLA
Employer Notice Requirements
OFLA
• If leave not OFLA
qualified, employer must
notify employee in
writing; notice must state
employee is ineligible, or
the reason for the denial
• Notice must state what
additional information (if
any) is required; give
employee “reasonable
time” to correct
deficiency (ORS)
FMLA
Eligibility notice must
state reason why leave
is not eligible
Concurrent
OFLA and FMLA Leave
OFLA/FMLA covered
employers follow FMLA
Employer Notice Requirements
OFLA
NA
FMLA
Each time FMLA eligible
notice given, employer
required to provide
written ‘Rights and
“Responsibilities” notice,
(29 CFR 825.300(c) )
employee obligations,
and consequences of a
failure to meet those
obligations
Concurrent
OFLA and FMLA Leave
OFLA/FMLA covered
employers follow FMLA
Employer Notice Requirements
OFLA
When employee
requests leave, or
employer is
knowledgeable that
leave may be OFLAqualified, employer
must notify eligibility
status, within five
business days (OAR)
If leave denied, notice
must be written
FMLA
Concurrent
OFLA and FMLA Leave
When employer has
OFLA/FMLA covered
enough information to
employers follow FMLA
determine whether
FMLA-qualified, with five
days (assumes no
extenuating
circumstances),
employer must give
written notification to
employee
Employer Notice Requirements
OFLA
NA
FMLA
If employee required to
present fit-for-duty
certification, and
employer’s handbook
doesn’t include this
policy, then requirement
notice must be given
when designation notice
given
Concurrent
OFLA and FMLA
OFLA/FMLA covered
employers follow FMLA
Employer Notice Requirements
OFLA
If leave is not sick child
or parental leave,
employer may request
additional information to
determine eligibility
FMLA
Employer’s decision to
designate leave must be
based only on
information received
from employee or
employee’s
spokesperson
If insufficient information
reason for leave denial,
employer should ask for
more information
Concurrent
OFLA and FMLA
OFLA/FMLA covered
employers follow FMLA
Employer Notice Requirements
OFLA
NA
FMLA
• Employer may
retroactively designate
FMLA leave, with
appropriate notice, and if
it won’t cause harm or
injury to employee.
• Employer and
employee may mutually
agree to retroactively
designate leave
Concurrent
OFLA and FMLA
Refer to FMLA column
Conservative Risk
Management Practice: If
too much time has
passed since employer
was aware, use date of
Notice as start of family
leave deduction
Employer Notice Requirements
OFLA
NA
FMLA
• Subsequent need
during leave year, due to
different qualifying
reason, and eligibility
status hasn’t changed,
then additional eligibility
notice not required
• If eligibility status
changed, and no
extenuating
circumstances, then
must notify within five
business days
Concurrent OFLA and
FMLA
Follow FMLA for FMLAcovered leave
Employer Notice Requirements
 OFLA: If notices are sent late, the notice
date may become the start of the leave
date for tracking purposes, unless
employer and employee mutually agree to
retroactively designate the leave as family
leave
Employer Notice Requirements
FMLA Examples
Example #1
Employee injured while on vacation…Leave
can be designated using the injury date as the
effective date
Example #2
Employee is absent for a cold, which later
becomes pneumonia…entire absence may be
designated FMLA leave
Provisional Leave Designation
 If employer knows reason for leave, but
enough information for designating leave
hasn’t been given, or medical certification
hasn’t been received, OFLA allows
employer to provisionally designate leave
– FMLA stopped allowing this in 2009
Leave Form
 Can use U.S. Department of Labor’s WH381 form, but…doesn’t cover all OFLA
designations
 CIS-designed templates include FMLA
and OFLA information
Qualifying Events
Get well cards have
become so humorous that
if you don’t get sick you’re
missing half the fun.
-Flip Wilson
Bereavement Leave
New
Law
 Effective January 1, 2014
 Attend to/arrange funeral or alternative
 Make arrangements necessitated by
family member death
 Grieve the death of family member
 Up to 2 weeks, within 60 days from death
notice, up to 12 weeks max
 Deduct from OFLA
Bereavement Leave
 Can’t require concurrent use
 Same family members/same employer =
concurrent leave
 Oral notice within 24 Hours
 Written notice within 3 days of return to
work
 No time-reduction penalty for not notifying
Qualifying Events
OFLA
FMLA
Employee’s own serious health
condition
Employee’s own serious health
condition
Employee’s family member’s serious
health condition:
•Spouse
•Parent
•Biological, adopted or foster child, in
loco parentis, adult child with serious
health condition
•Parent-in-law
•Same-sex domestic partner
•Grandparent
•Grandchild
Employee’s family member’s serious
health condition:
•Spouse
•Parent
•Biological, adopted or foster child, in
loco parentis
•Someone assuming the role of caring
for a child (August 2010 DOL ruling)
•Up to 12 additional weeks available
Qualifying Events
OFLA
Newborn, newly adopted or newly
placed foster child (“parental leave”)—
part of 12-weeks serous health condition
• OFLA: Legally recognized foster
parent (or in-process)
• Child younger than 18 or adult
dependent child
• Adult child with serious health condition
Sick Child Leave: Non-serious health
condition of a child requiring home care
FMLA
Newborn, newly adopted or newly
placed foster child (“parental leave”)—
part of 12-weeks
• FMLA: Legally recognized foster
parent (or in-process) (24-hour care
away from parent, with state action)
• Child younger than 18 or adult
dependent child
• Within 1 year of birth date
• Take in one uninterrupted period
Qualifying Events
OFLA
FMLA
Spouse or same-sex domestic partner
of service member called to active
duty or notified of impending call to
duty during a period of military conflict
Any “qualifying exigency” arising out of
the fact the employee’s family member
is on active duty in uniformed services
or has been notified of an impending
call or order to active duty status, in
support of a contingency operation
Eligible employee who is family
member or next of kin of military
service member who is recovering
from a serious illness or injury
sustained in line of duty on active duty
in uniformed services, is entitled to
FMLA leave to care for
aforementioned military service
member
Emotional Support
 Caring for a family member includes
physical and psychological care
 Employee entitled to use family leave to
provide psychological comfort and reassurance to covered family member with
serious health condition
Parental Leave
 Bonding time with newborn, newly
adopted, or newly placed foster child
 Both parents eligible for 12 weeks
 If both parents work for same employer:
– FMLA: 12-weeks combined
– OFLA: Each employee eligible for 12 weeks
 Could concurrently take their 12 combined FMLA
weeks, then complete additional weeks noncurrently
Parental Leave
 Has to be taken within 1 year from date of
birth date
 One uninterrupted period
 12 Weeks sick child leave available if use
12-weeks uninterrupted Parental Leave
 Cannot require medical certification
Workers’ Comp and Family Leave
 FMLA
– Can deduct time loss from 12 weeks if meets
serious health condition definition
 OFLA
– Cannot deduct time loss from 12 weeks
unless…
 Employee refuses bona fide light duty job offer
– If OFLA used pending acceptance of WC
claim, restore time if claim accepted
OFLA Pregnancy Leave
 In addition to family leave
 Up to 12 weeks
 Pre-delivery…if serious health condition
related to pregnancy
 Post delivery…if doctor designates postdelivery absence as “pregnancy disability”
OFLA Sick Child Leave
 Home care needed for illness or injury
non-serious health condition, or
required/non-routine health care provider
visits
 Routine health care provider visits not
covered
 If another family member, including a noncustodial biological parent is willing and
able to care for child, then don’t have to
grant leave
OFLA Sick Child Leave
 May use to care for dependent adult
children
 Routine child care difficulties not covered
 Can require medical certification after third
occurrence or third day missed days
– Aggregate days for all children
 Not 3 days per child
OMFLA
 All public agencies covered by OMFLA
 Employee must follow employer’s “known,
reasonable and customary procedures for
requesting any kind of leave”
 Eligible employee
– Averages at least 20 hours/week
– Spouse or same-sex domestic partner of
member of Armed Forces of United States
– Servicemember is called to active duty, or
OMFLA
– Notified of impending call or order to active
duty, or
– Is on leave from active duty during period of
military conflict
 No minimum number of days employee
must have worked for employer, to be
leave-eligible
OMFLA
 Leave of Length:
– May be taken intermittently
– May be taken before/during deployment, if
meets other criteria
– 14 Days/per deployment
 May cross-over multiple family leave years
OMFLA
 Employer may require photocopy of
service member’s orders, if requested in
writing
– May provisionally designate leave, pending
copy of orders
Serious Health Condition
Serious Health Condition
OFLA
FMLA
• Illness, injury, impairment, or physical
or medical condition requiring inpatient
care in a hospital, hospice, or
residential medical care facility
Illness, injury, impairment, or physical
or mental condition requiring an
overnight stay in hospital, hospice, or
residential medical facility, including
any period of capacity, or any
subsequent treatment in connection
with such inpatient care
Illness, injury, impairment, or physical
or mental condition that:
•Requires “constant” or “continuing”
care such as home care administered
by a health provider or one treatment
plus a regimen of continuing care; or
Illness, injury, impairment or physical
or mental condition involving
continuing treatment, period of
incapacity for more than three
consecutive, full calendar days, and:
•In-person treatment, two or more
times within 30 days of the first day of
incapacity,
Serious Health Condition
OFLA
FMLA
• Involves a period of incapacity for
more than three consecutive calendar
days and two or more treatments by a
health care provider or one treatment
plus a regimen of continuing care; or
• Involves permanent or long-term
incapacity for which treatment may not
be effective, such as Alzheimer’s
disease, severe stroke, or terminal
stages of a disease. Employee or
family member must be under
continuing care of health care provider
but need not be receiving active
treatment
• Treatment by a health care provider,
with the first visit within seven days of
the first day of incapacity unless; or
• In-person treatment by a health care
provider on at least one occasion that
results in a period of continuing
treatment under the health care
provider’s supervision with the first day
of incapacity
Serious Health Condition
OFLA
FMLA
•Illness, injury, impairment or physical
or mental condition that results in a
period of incapacity or treatment for a
chronic serious health condition that
requires periodic visits for that
treatment by a health care provider,
continues over an extended period of
time, and may cause episodic rather
than a continuing period of incapacity
such as asthma, diabetes, or epilepsy
•Chronic condition that requires at
least two visits a year for treatment by
a health care provider, continues over
an extended period of time, and may
cause episodic instead of a continuing
period of incapacity.
•Illness, disease or condition
diagnosed as terminal with a
reasonable possibility of death in the
near future
Permanent or long-term conditions for
which treatment may not be effective,
e.g. Alzheimer’s disease, stroke,
terminal stages of a disease
Serious Health Condition
OFLA
FMLA
•Illness, disease, or condition
diagnosed as posing an imminent
danger or death.
•Illness, injury, impairment or physical
or mental condition that involves
multiple treatments for restorative
surgery or for a condition such as
chemotherapy for cancer that, if not
treated, would likely result in
incapacity of more than three days
•Conditions that require multiple
treatments for restorative surgery or
would likely result in a period of
incapacity for more than three
calendar days without medical
treatment, e.g. cancer chemotherapy,
severe arthritis (physical therapy)
Serious Health Condition
OFLA
• Any period of disability due to
pregnancy or period of absence for
prenatal care
FMLA
• Pregnancy, including prenatal and
postnatal care; no minimum number of
days missed
Comment: Leave rights don’t just
apply to pregnant female—male
employee may be eligible for OFLA to
care for his wife
“Covered servicemember” leave is not
covered by OFLA.
Injury or illness incurred by a covered
servicemember in the line of duty or
active duty that may render the
servicemember unfit to perform the
duties of the member’s office, grade,
rank, or rating
Serious Health Condition
 Examples of conditions generally not
qualifying as a “serious health condition”
–
–
–
–
–
–
–
–
–
Common cold
Flu (refer to definitions for serious health conditions)
Earaches
Upset stomach
Routine headaches (migraines often qualify as “serious”)
Sore throat
Routine medical or dental visits
Bereavement leave
Cosmetic treatments, unless inpatient hospital care or
complications
Certification
Oregon.gov
FMLA & OFLA Medical Certification
OFLA
FMLA
•Employer can choose to require
medical certification (before leave if
possible)
•Can’t request for parental leave,
•Can request after employee has used
3 days of sick child leave
•Employer may require supporting
certification issued by health care
provider of employee or family
member’s health care provider
•Employer must provide employee
with written notice, if medical
verification required
•Employer should request certification
when employee gives leave notice, or
within five business days afterwards
•Employer may request at later date if
employer has reason to question leave
qualifications
FMLA & OFLA Medical Certification
OFLA
FMLA
•Employee required to provide within
15 days of employer’s request, if
employee can’t give 30 days notice
•Employee must provide “complete
and sufficient” certification within 15
calendar days of request
•Medical facts must be sufficient to
support need for leave
•If ineligibility determined, written
notice must state what additional
information is required
If certification incomplete or
insufficient, employer must give
employee seven days to provide
complete/sufficient information
FMLA & OFLA Medical Certification
OFLA
Silent on serious health conditions
lasting beyond a single leave year
Employers may require employee to
provide “medical verification of need
for leave”
FMLA
Employer may require new medical
certification each subsequent leave
year, when leave is for employee or
family member’s own serious health
condition, if condition lasts beyond a
single leave year
Information on medical verification
form must only related to serious
health condition for current leave need
WH-380E (employee)
Note: You can use federal forms, but
WH-380F (family member)
it doesn’t fit for all OFLA leave reasons www.dol.gov
FMLA & OFLA Medical Certification
OFLA
Silent on this issue
Oregon’s WC Ombudsman Office
comment: WC medical information
should not be transferred to OFLA file
Silent on this issue
FMLA
If employee is on FMLA/worker’s
comp benefits or FMLA/disability paid
leave, employer can use medical
information entitled to under WC or
disability and use to determine
entitlement to FMLA leave
If employee’s serious health condition
may also be an ADA disability,
employer may request information
under ADA procedures; this
information may be used to determine
FMLA entitlement
FMLA & OFLA Medical Certification
OFLA
FMLA
Employer may not contact employee’s
health care provider; the employer’s
health care provider (with permission
from employee) is allowed to contact
employee’s health care provider
Employee not required to authorize
employer to contact employee’s health
care provider, but if certification
requested, employee responsible for
providing complete and sufficient
certification; failure to do so may result
leave denial
Employer may contact health care
provider in limited circumstances—
note OFLA doesn’t allow this
FMLA & OFLA Medical Certification
OFLA
FMLA
Allows second and third opinions, but
no consequence provision if employee
doesn’t authorize release of medical
information
If employer doubts validity of medical
certification, second and third opinions
may be obtained; if employee doesn’t
authorize medical information release,
employer may deny leave
Employer must accept foreign medical
certification; Employee must provide
written English translation if required
Employer must accept foreign medical
certification if serious health condition
develops in another country; employee
must provide written English
translation if required
FMLA & OFLA Medical Certification
 Sick Child Leave: after first 3
occurrences, may require certification for
each occurrence for that leave year
– Second opinions not allowed
 Medical verification can’t be required for
parental leave
 Employer responsible for paying any outof-pocket cost for required medical
certifications
FMLA & OFLA Medical Certification
 Failure to provide, may result in loss of
reinstatement rights
 May require every 30 days for intermittent
leave
 Medical information must be stored
separately from personnel file, in a
controlled-access location
FMLA & OFLA Re-certification
 OFLA allows recertification every 30 days,
only in connection with employee
absence, except as provided in FMLA
regulations
– Employee requests leave extension
– Circumstances change significantly
– Employer receives information casting doubt
on stated reason for leave
– More than 30 days…Must wait until minimum
duration expires
FMLA Servicemember Certification
 Employer may require medical certification
– Servicemember’s name
– Current military status
– Name of healthcare provider
– Whether illness/injury occurred in the line of
duty
FMLA Servicemember Certification
‾ Approximate beginning date of illness/injury;
probable duration
‾ Appropriate medical facts to establish
servicemember’s need for care
‾ Intermittent/reduced leave: Determine if there
is a medical necessity for this leave type;
estimate frequency, and duration of care
FMLA Servicemember Certification
– Determine if there is a medical necessity for
unplanned medical care (episodic flare-ups);
estimate duration and frequency of care
– Outpatient vs. inpatient status, and name of
medical treatment facility or unit
– Determine temporary disability retired list
status
– Description of care to be provided; leave
estimated needed to provide care
FMLA Qualifying Exigency Certification
 Certification can be requested
– One time request for same exigency
– Copy of active duty orders
 Including dates of active duty service
– Sufficient information to determine need for
leave
– Exigency date
 Beginning and ending dates for continuous leave
 Estimated frequency and duration if intermittent
OMFLA Certification
 Employee required to notify employer of
intention to take leave
– Within 5 business days of receiving official
notice of impending call or order to active duty
Health Care Providers
Health Care Providers
OFLA
A “health care provider” is a person
who is primarily responsible for
providing health care to an eligible
employee or family member of an
eligible employee, who is performing
within the scope of the person’s
professional license or certificate, and
who is:
• A physician or osteopathic doctor;
• A podiatrist, dentist, psychologist,
optometrist, naturopath, registered
nurse, nurse practitioner, direct entry
midwife, licensed registered nurse
who is a certified as a nurse midwife
nurse practitioner, clinical social
worker, or chiropractor;
FMLA
A “health care provider” is:
• Licensed doctor of medicine or
osteopathy;
• Licensed podiatrist, dentist, clinical
psychologist, optometrist, or
chiropractor performing within scope
of their practice;
• Licensed nurse practitioner, nursemidwife, clinical social worker, or
physician assistant performing within
scope of their practice;
Healthcare Providers
OFLA
FMLA
Person who is primarily responsible for
the treatment of an eligible employee
or a family member of an eligible
employee solely through spiritual
means, including but not limited to a
Christian Science practitioner
• Christian Science Practitioner;
• Any health care provider from whom
an employer or employer’s group
health plan’s benefits manager will
accept certification of the existence of
a serious health condition to
substantiate a claim for benefits; and
• Health care provider listed above
who practices in another country who
is authorized to practice in that country
and is performing within scope of their
practice
Benefits During Leave
Wikimedia.org
Benefits During Leave
Benefit Type
OFLA
FMLA
Vacation Leave
• Employee must be
allowed to use any
accrued leave
• Employer may require
leave use
• Employer may
determine order leave is
used
• Employee must be
allowed to use any
accrued vacation leave
• Employer may require
leave use
• Employer may
determine order leave is
used
Sick Leave
Employed must be
allowed to use accrued
sick leave
Employee may be
allowed to use accrued
sick leave, consistent
with sick leave policy
Accrual of benefits,
seniority, and bonuses
Subject to collective
employer policy, or
bargaining agreement
Subject to employer’s
policy
Benefits During Leave
Benefit Type
Insurance Benefits
OFLA
FMLA
• Employer not required
to maintain insurance
benefits
• If employer chooses to
maintain, continue to pay
employer portion
• When reinstated, must
be guaranteed pre-leave
level of coverage and
benefits
• Group health plan
coverage must be
maintained during family
leave, subject to
changes that affect other
employees (unless leave
fraudulently obtained)
• Employer must pay
employer premium share
• When reinstated, must
be guaranteed pre-leave
level of coverage and
benefits
Pay While On Leave
Therichest.org
Pay While on Leave
 Unpaid unless employee has accrued
leave available
– FMLA: Allow use of vacation pay or sick
leave if consistent with employer’s usual sick
leave policy
– OFLA: Allow use of vacation, sick leave, or
any other paid leave available
Pay While on Leave
 Exempt Employees Pay
– If FMLA and OFLA covered may deduct
partial day absences (exception to FLSA)
– If only OFLA covered should pay full salary for
the day
Fit for Duty
Fit for Duty: OFLA
 If for employee’s own serious health
condition, employer may require this
certification
– Certification provided by employee’s doctor
– Must require it from all returning OFLA leave
employees
– Second opinions not allowed
 Employer pays out-of-pocket cost
Fit for Duty: FMLA
– Similar to OFLA
– Must notify in writing when sending initial
designation notice and include form with
notice
– May require information about employee’s
ability to perform essential job functions
– Include job description with initial notice
FMLA & OFLA
Reinstatement Rights
Matchmove.com
Reinstatement Rights
OFLA
FMLA
• Must be restored to position held
when leave began, even if filled with
replacement worker
• Employee has bumping rights
Entitled to same position held when
leave began, or to equivalent position
with equivalent benefits, pay, and
other terms and conditions, even if
employee was replaced or position
was restructured to accommodate
absence
If position eliminated (vs.
renamed/reclassified), must be
restored to any available, equivalent
position (same in as many aspects as
possible)
Equivalent position: Virtually identical
to former position; must involve
substantially equivalent skill, effort,
responsibility and authority
Reinstatement Rights
OFLA
If equivalent position not available,
offer equivalent position within 20
miles of former position
FMLA
• Must be same geographically
proximate worksite
• If worksite closed, same rights as if
not on leave
• Usually same shift or same
equivalent work schedule
• Employer can’t pressure employee to
accept different position, against
employee’s wishes
• Equivalent does not include de
minimis, intangible, or unmeasurable
aspects of job
Reinstatement Rights
OFLA
FMLA
Employee not entitled to former
position if employee would have been
bumped
If employer denies reinstatement,
must be able to show, employee would
not otherwise be reinstated
If leave fraudulently obtained, job
restoration not protected
Reinstatement Rights
• If job eliminated (including layoffs)
• No reinstatement if job eliminated for
legitimate business reasons
• Beware of the timing of the layoff
• Maintain good documentation of nondiscriminatory
criteria
• Reinstatement not required if:
• employee hired for specific project (limited
duration position), and
• project terminates while employee on leave
Reinstatement Rights
 Job Abandonment
– If employee gives “unequivocal” notice of intent
not to return, employer not obligated to re-instate
– FMLA: Employment relationship ends after
employee clearly abandons future employment
– OFLA: If original need for OFLA leave still exist,
employee entitled to all rights and protections
under OFLA
Administration Tips
Clammyhands.org
Clear as Mud
1st Apply what is most favorable to employee
Practice trumps everything!
2nd Apply the law
3rd Apply collective bargaining agreement
4th Apply employee handbook policies
Administration Tips
 FMLA must be tracked
 Apply consistently
 Follow law/policy most beneficial to
employee
 Employee must provide enough
explanation for employer to make decision
Administration Tips
 No “magic words” required; employee
need only describe the situation that exits
– Employee doesn’t need to say “OFLA,”
“FMLA,” or “family leave”
– Employee only needs to say he/she is missing
work
– Employer obligated to inquire further to obtain
enough information to determine whether a
qualifying situation exits
Administration Tips
 Employer always has the obligation to
obtain enough information from the
employee or employee’s spokesperson to
determine if leave OFLA and/or FMLA
qualified
– Calling in sick, without providing more
information…not considered sufficient notice
to trigger OFLA
Contact our Pre-Loss Staff
for assistance:
Kirk Mylander
503-763-3845
Janie McCollister 503-763-3892
Steve Norman
503-763-3890