Managing the Critical Periods of Protected Leave
The current state of protected leave law is a grid-like patchwork of sometimes overlapping and sometimes conflicting programs established by both federal and state authorities. Between the Family and Medical Leave Act (FMLA), the Oregon Family Leave Act (OFLA), and Paid Leave Oregon (PLO), it can be daunting as an employer to understand your role when an employee seeks to take leave. Aside from a technical understanding of leave issues, there are many practical components to handling employee leave requests. Because employers’ obligations in this area extend beyond leave eligibility alone, it is important to understand employer requirements at all stages of leave administration: before, during, and after the leave takes place. Some of the most common legal pitfalls are not during the protected leave itself, but immediately before and after.
There Are Various Types of Legally Protected Leave in Oregon
Employees in Oregon may be eligible for leave under FMLA, OFLA, or PLO. Eligibility requirements, qualifying reasons, leave length, and other benefits vary depending on which type of leave an employee qualifies for. Further, some types of leave may be taken at the same time, while others must be used consecutively.
Qualifying reasons for leave might include a family member’s serious health condition, an employee’s own serious health condition, bereavement leave, or the birth, adoption, or foster placement of a child. Victims of domestic violence, sexual assault, harassment, bias, or stalking may also be eligible for certain types of leave. Determining whether and which type of protected leave is available will often require a case-by-case review of each employee’s specific circumstances. Nonetheless, it is important that employers and their management employees have a basic understanding of eligibility and qualifying purposes so that they are on alert for when further action may be required.
The Best Way to Stay Compliant is to Be Proactive
Before an employee ever requests or specifically discusses leave, employers still have certain obligations. For example, employers must display posters or notices which provide employees with information about their rights. Some protected leave laws, such as PLO, have further requirements regarding notice, including that remote employees must be provided with the notice poster directly, whether through physical delivery or electronic means. Employers should regularly check to ensure that their posters display the most up-to-date information, as this area of law frequently changes.
Depending on the type of leave at issue, employers have different preliminary obligations. For example, under both FMLA and OFLA, an employer must provide information to the employee as soon as they are aware of circumstances indicating that the employee might have a need for leave. This includes providing information to employees about available protected leave even if the employee has not specifically referenced or requested leave, if the employee has made it evident that a qualifying circumstance has or will occur. Accordingly, it is best practice for employers to be proactive about assisting employees with leave. Proactivity will also help ensure that you as an employer have as much notice as possible about an employee’s impending leave, which can help you to prepare for the absence of key employees.
Prohibition Against Discrimination and Retaliation
Leave laws also makes it unlawful to discriminate or retaliate against employees who use or simply inquire about protected leave. It is important that employers carefully consider their words and actions any time leave is being discussed or management is aware of a potential protected leave situation.
There can be legal consequences even when discrimination or retaliation is not overt or intentional. Invoking protected leave is a “protected activity,” meaning that any adjustment to the terms and conditions of employment which can be linked to an employee’s invocation of leave rights may be deemed unlawful. Accordingly, employers should take special care when making any decisions related to an employee’s terms or conditions of employment if the employee has requested or indicated that they may seek leave.
To mitigate the risk that normal, non-discriminatory business decisions could be mistaken for discrimination or retaliation, employers should document the reasons for changing an employee’s terms and conditions of employment in real time. For example, an employee who is terminated after they requested leave may argue that the reasons for their termination were pretextual; therefore, the more clearly the reasons are documented, the better the employer will be able to establish that the business basis for the decision was unrelated to the use of leave. Incorporating a release of claims with an accompanying severance payment is also a tool to mitigate risk, particularly where there is proximity in timing between the invocation or use of leave and the termination.
Similarly, changes to the terms and conditions of employment following an employee’s return from leave may also face scrutiny if perceived as discriminatory or retaliatory.
Takeaways
Employers’ obligations surrounding protected leave extend beyond the time an employee is off work. There is significant legal risk during both the period before the leave commences, and after the employee returns. In order to cover all the bases, employers in Oregon should always exercise caution during the critical periods before and after the protected leave.
Joshua Waugh is an attorney at Barran Liebman LLP, where he represents employers on a wide range of employment issues. For questions, contact him at 503-276-2138 or jwaugh@barran.com.
Lex Shvartsmann is a law clerk with Barran Liebman LLP, where she partners with attorneys in client trainings, legal research, and the drafting of employment policies and handbooks.
