With the holiday season fast approaching, spending time with loved ones is at the top of employees’ minds. For employers, employees’ absences and requests for time off during the holidays also raise perennial questions. In light of this, it is a perfect time to revisit some of the most common questions for complying with the Federal Medical Leave Act (FMLA) and the Oregon Family Leave Act (OFLA) to avoid pitfalls and mitigate the risk of exposure.
Under FMLA, employers with 50 or more employees must provide up to 12 weeks of protected unpaid leave to qualifying employees with serious health conditions. Employees may also take parental leave and care for a spouse, child, or parent with a serious health condition. OFLA is the state family medical leave law that applies to employers with 25 or more employees. While OFLA is similar to FMLA in many respects, OFLA also protects additional types of leave, like bereavement leave, and allows an employee to care for a longer list of family members including grandparents, grandchildren, in-laws, and domestic partners.
Providing Holiday Pay During Protected Leave
During the holidays, employers must consider whether to pay employees on unpaid, protected leave holiday pay. Whether an employee should receive certain benefits, like holiday pay, is determined by the employer’s general policy or practice for other forms of leave. Therefore, if an employer provides holiday pay to employees on vacation, it should provide holiday pay to employees on protected leave as well. Employers should be careful to treat employees uniformly and respond to requests consistently to avoid the appearance of interfering with protected leave.
Accounting for Protected Leave During Holidays
If a holiday falls in the middle of an employee’s protected leave, that holiday may or may not count as a day of leave depending on the circumstances. Employers should calculate the length of an employee’s leave based on the employee’s work schedule. If the office is open and the employee was originally scheduled to work on the holiday, then the holiday counts against the employee’s leave bank. If the office is closed on the holiday, the employer must consider the length of the protected leave to account for the amount of leave taken.
Under these leave laws, leave is calculated in workweek increments. If an employee is on protected leave the entire week of the holiday, the employee uses a full week of protected leave. In these situations, the employer does not have an obligation to extend the leave an employee can take simply because a holiday falls in the middle of protected leave.
The answer is, however, different if the employee takes less than a full week of protected leave. For example, if an employee worked on the Monday before Thanksgiving and used FMLA leave for the rest of the week, the employer should deduct three-fourths of the employee’s workweek from the employee’s leave bank. Here, an employee would not need to rely on protected leave to take the holiday off from work.
Cracking Down on Leave Abuse
Most leave requests are entirely legitimate. Curious or suspiciously timed protected leave requests around the holidays may give an employer pause and a reason to wonder about the authenticity of a leave request. Responding to concerns of leave abuse requires caution. Even if an employer has an honest belief that the employee’s reason for leave does not qualify for FMLA and OFLA’s protections, that is not necessarily a basis for denying the employee’s leave request.
For best practices, the employer should get as much information as possible from the employee at the time of the protected leave request. If you have standard paperwork, use it with every employee to get the basis of the request in writing and, when an employee requests leave for a serious health condition, you should obtain medical certification from the employee that identifies the serious health condition and the treatment needed. Keep in mind, the employee is responsible for providing a medical certification within 15 days of your request for certification with an explanation of the basis for the leave as well as the timing and duration of leave. If the supporting documentation is vague or incomplete, an employer should seek further clarity from the employee. The employee’s failure to provide supporting information may be a basis for denying a leave request.
Employers have a range of other tools to crack down on potential abuse of protected leave. Sometimes, an employer may pay the costs of another doctor’s opinion or ask for timely recertification of medical need for leave. Employers can consider developing and enforcing call-in procedures for absences and requiring employees to certify the reason and length for the leave after the employee returns to work. To determine which options are available and appropriate for the situation you face, nothing beats a call to employment counsel to ensure compliance with leave laws.
Josh Goldberg is an attorney with Barran Liebman LLP. He provides employment advice and defends employers against a variety of claims. Contact him at 503-276-2107 or jgoldberg@barran.com.
