Top Five Paid Leave Oregon and Family Medical Leave Questions

Oregon has seen a significant change to protected leave laws over the past few years. The Paid Leave Oregon (PLO) program began in late 2023, and rules and regulations are continuing to change. The Oregon Family Leave Act (OFLA) went through major amendments in July 2024. Fortunately for employers also covered by the Family Medical Leave Act (FMLA), FMLA has not changed.

Because of this evolving landscape, keeping up with the ins-and-outs of leave laws can be challenging – how do you know how much leave an employee gets? How do leave laws work with paid leave that you have already provided the employee?

We’ve compiled the answers for you – read on to learn the answers to the top five most common questions employers are asking.

1. If an employee has a qualifying reason that qualifies for leave under OFLA, FMLA, and PLO, what’s the maximum amount of leave they could receive?

Assuming that we are talking about a single qualifying reason, the maximum amount of leave an employee could receive is generally 24 weeks. This is likely to occur when an employee is taking leave for a child with a serious health condition. OFLA and PLO do not run concurrently, so the employee could take 12 weeks of leave under OFLA and then 12 weeks of leave under PLO, or vice versa. FMLA may run concurrently with OFLA or PLO so it will run concurrently with whichever leave is used first.

For example, let’s say that an employee’s child has a stroke on January 1 and needs six months of care for recovery. The employee does not apply for PLO and instead takes 12 weeks of OFLA, with FMLA running concurrently, from January 1 to March 26. OFLA and FMLA are exhausted, but the child still needs three more months of care so the employee applies for PLO. The employee takes 12 weeks of PLO from March 27 to June 19. The employee has now exhausted their OFLA, FMLA, and PLO (with some exceptions) and taken a total of 24 weeks of protected leave.

There are some rare situations where an employee could take more than 24 weeks of leave, and this will mostly occur when an employee needs leave for pregnancy-related reasons and then takes parental leave to bond with their baby. For example, let’s say an employee has a high-risk pregnancy and is put on bed rest for the last 12 weeks of their pregnancy. This is covered by OFLA under pregnancy disability leave, and FMLA runs concurrently as it likely qualifies as a serious health condition.

OFLA provides 12 additional weeks of leave specifically for pregnancy disability, so the employee has exhausted their pregnancy disability leave and has 12 weeks of OFLA leave remaining for any other qualifying reason. FMLA is exhausted.

The baby is born and the employee applies for 12 weeks of parental leave under PLO. The employee also applies for the two additional weeks of leave under PLO for pregnancy-related reasons – PLO provides two weeks of leave in addition to the 12 weeks of general leave specifically for reasons related to pregnancy. The employee uses 14 weeks of PLO. PLO is now exhausted.

At this point, the employee has used a total of 26 weeks of protected leave and has 12 weeks of OFLA leave remaining for an OFLA-qualifying reason.

2. Can an employee take OFLA and/or FMLA and choose not to take PLO?

Yes. OFLA does not run concurrently with PLO, so an employee using OFLA will not be taking PLO and an employee approved for PLO will not be covered by OFLA.

FMLA can run concurrently with PLO. However, an employee cannot be required to apply for PLO, so an employee could take FMLA leave and then choose to take PLO after their FMLA leave. For example, let’s say that an employee has a parent who requires 12 weeks of care for a serious health condition. The employee takes 12 weeks of FMLA leave. The employee chooses not apply for PLO since they have a surgery scheduled later in the year and are saving their PLO for recovering from that surgery.

In this example, the employee chooses to use their FMLA first. Since they did not apply for PLO, the two leaves do not run concurrently. The employee then chooses to take their PLO leave later in the year.

3. Can employees use PTO, sick, or vacation time while receiving benefits from Paid Leave Oregon?

Yes, as of July 1, 2024, employees are entitled to use any company-provided paid leave while receiving Paid Leave Oregon benefits. This means that an employer may not prohibit or require the use of paid leave during leave covered under Paid Leave Oregon. However, employers may determine the order in which an employee must use company-provided paid leave.

Additionally, an employer may cap the amount of PTO, sick, or vacation time an employee may use to supplement PLO benefits, up to 100% of an employee’s weekly wage. This means if an employee usually earns $1,000 per week and is receiving $800 per week from PLO, they could only use $200 of paid time off per week.

Employers also may be more generous and allow an employee to use the full amount of their paid time off while receiving PLO benefits. If this is the case, then if an employee usually earns $1,000 per week and receives $800 per week from PLO, they could use $1,000 of PTO per week for a total of $1,800.

4. Can employees be required to use their PTO, sick, or vacation time while they are on leave and waiting to see if their PLO claim is approved?

Yes. Although employees cannot be required to use PTO, sick, or vacation time while on leave covered under PLO, there are instances where an employee will go on leave prior to filing a PLO claim or receiving approval for a PLO claim. Both BOLI and the Oregon Employment Department have stated that an employer may require the use of company-provided paid leaves during the time between the date an employee begins leave and receives approval for PLO. Additionally, employers are not required to credit the used company-provided paid leave back to the employee.

An employer may require an employee to pay back the vacation, sick, and/or PTO they used during the time the employee was on leave prior to receiving PLO approval. However, if the employee chooses not to pay back the time, then the employer’s only recourse would be to pursue repayment through legal means.

5. Can employees continue to receive PLO benefits after leaving employment?

Generally, employees may not receive paid benefits from PLO after leaving employment. PLO benefits are intended to replace wages while an employee is on leave from work, so an employee who is no longer earning wages would not be eligible for PLO.

However, if an employee is working two jobs and leaves one of their jobs, then they would still be eligible for PLO from their remaining place of employment. If an individual’s employment situation changes, they should immediately amend their PLO claim to account for the changes.

For more information on OFLA, FMLA, and PLO, Cascade members are encouraged to visit our FAQs and Paid Leave Oregon site. You can also contact us at compliance@cascadeemployers.com with any questions.