By Amy Robinson
Summer 2014

Are you familiar with the host of leave rights that are available to your employees?  It can be risky to assume you won’t run into a problem or a potential lawsuit just because you have a top-notch human resources department and up-to-date personnel policies.  Managers and administrators must have a basic understanding of employee leave rights in order to do their part in ensuring compliance.  
 
While the rules and procedures for leaves of absence differ, one thing that is generally the same for all protected leaves is that each law includes an anti-retaliation provision prohibiting employers from taking an adverse action against employees for requesting or using protected leave.  As counsel for employers, we often see claims where an employee is terminated or disciplined for absences that should have been excused for one or more of these protected leaves.  Sometimes that is simply because even if he or she knew of the reason for the employee’s absence, the decision-maker was not aware that the time off qualified for legal protection.  Unfortunately, that fact generally does not excuse the mistake under the law. 
 
With that in mind, here is a list of the most common types of leaves that are afforded legal protection.  The purpose of this list is to provide you with a general understanding of the circumstances that can trigger leave obligations so that you can consult with the appropriate personnel or legal counsel when protected leave issues arise.   
 

1. Family and Medical Leave. 

Federal law, via the Family and Medical Leave Act (FMLA), Oregon state law, via the Oregon Family Leave Act (OFLA), and Washington state law, via the Washington Family Leave Act (WFLA), provide leave rights for certain familial or personal illnesses and other related situations.  FMLA and WFLA both apply to government employers or to private employers with 50 or more employees.  OFLA applies to government employers and private employers with 25 or more employees. 
 
Whether an employee meets the eligibility requirements for leave and whether the specific circumstances actually qualify for leave can be a challenging and exceedingly fact-specific inquiry.  In general, employees are entitled to protected leave for the following reasons:

• A serious health condition of the employee or an employee’s family member
• The birth, adoption, or foster placement of a child
• Certain pregnancy or childbirth-related medical conditions
• A military deployment of a family member
• A military-related injury or recovery period of a family member
• An illness or injury to an employee’s child that requires home care  

 
A family member under FMLA includes a spouse, son, daughter, or parent.  29 USC 2612(a)(1).  WFLA is similar, but also includes registered domestic partners.  OFLA is even more inclusive, defining “family member” as “an employee’s spouse; same-sex domestic partner; biological, adoptive, step, or foster child or parent; parent-in-law; grandparents and grandchildren; and any person with whom the employee has an in loco parentis (i.e., in place of parents) relationship.”  ORS 659A.150(4).  This can lead to situations where an employee has a right to protected leave under either or both laws, depending on the circumstances of the need for leave. 
 
In addition, both Oregon and Washington law provides additional protections for time off needed in the event of pregnancy-related disabilities that might exceed the typical 12-week entitlement. 
 

2. Military Service Leave. 

The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) provides all employees the right to take unpaid leave to attend to duty in the “uniformed services” and a right to reinstatement upon return.  “Uniformed services” means the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service Commissioned Corps, as well as the reserve components of each of those entities.  38 USC 4303(16).  It also applies to training or service in the Army National Guard and Air National Guard, as well as certain disaster-response work and related training governed by the Public Health Security and Bioterrorism Response Act of 2002.  42 USC 300(hh)-11.  
 
Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral-honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.
 

3. Military Family Leave. 

Oregon’s Military Family Leave law provides employees with up to 14 days of unpaid leave per deployment to spend time with, or make arrangements for, a spouse or same-sex domestic partner who has been notified of an impending call or order to active duty or who is on leave from deployment.  ORS 6589A.090-099.  State and local governments or municipalities and private employers with 25 or more employees are covered by this law, and employees must work at least 20 hours per week to be eligible. 
 
Washington’s Military Spousal Leave provides spouses or registered domestic partners of military personnel up to 15 days of unpaid leave, per deployment, for pre- and post-deployment activities and leaves.  This applies to all employers in Washington, regardless of size, and is available to employees who work at least 20 hours per week.  RCW 49.77.
 

4. Domestic Violence/Abuse Leave. 

Oregon and Washington both have state laws that provide robust protections for employees who are victims of domestic violence, sexual assault, stalking, or criminal harassment, or who are the parent or guardian of a minor child or dependent who is the victim of domestic violence, sexual assault, stalking, or criminal harassment.  See, ORS 659A.272, RCW 49.76.  Washington’s version also extends the protection to “anyone with whom the employee has a dating relationship.”  RCW 49.76.020(5).
 
When applicable, it also requires eligible employees to be given time off to attend court proceedings, receive counseling, attend medical appointments, or deal with relocation efforts.  
 

5. Crime Victim’s Leave. 

Oregon law also grants employees who are crime victims and their immediate family members the right to protected leave from work to attend criminal proceedings.  “Crime victim” is defined broadly to include “a person who has suffered financial, social, psychological, or physical harm as a result of a person felony, as defined in the rules of the Oregon Criminal Justice Commission, and includes a member of the immediate family of the person.” ORS 659A.190(2).  “Immediate family” means a “spouse, domestic partner, father, mother, sibling, child, stepchild, and grandparent.” ORS 659A.190(5).
 

6. Emergency Service Leave. 

Washington law provides certain job protection for volunteer firefighters, reserve peace officers, and Civil Air patrol if:

• They get called to a fire, an emergency, or an emergency services operation and
• They are asked to remain on the scene by the incident commander, and
• They miss work or are late for work

(Note: volunteer firefighters are only covered if they get called to an emergency call or fire scene while they are away from their jobs.) RCW 49.12.460.
 

7. Jury Duty and Witness Testimony. 

Employees must be permitted time off when called for jury duty service in Oregon and Washington.  ORS 10.090, RCW 2.36.165.  There are also non-retaliation protections for employees who are required to be absent to appear as a witness in certain circumstances.  
 

8. Disability Leave. 

Under the federal Americans with Disabilities Act and its Oregon and Washington equivalents, qualified individuals with disabilities may be eligible for a leave of absence or schedule modification as a reasonable accommodation of the individual’s disability, so long as the individual can still perform the essential functions of his or her job.  “Disability” is broadly defined under these laws to include both physical and mental impairments and must be determined on a case-by-case basis.  While temporary illnesses like the common cold, influenza, or broken bones typically don’t meet the definition, the impairment need not be permanent to trigger rights under disabilities law.  
 

9. Portland Paid Sick Leave. **New in 2014**

As of January 1, 2014, employees who perform work within the city of Portland and meet the eligibility requirements are entitled to a certain amount of paid sick leave per year for the following reasons:

•  “Diagnosis, care, and treatment of the employee’s, or a family member’s, mental or physical illness, injuries or health condition including pregnancy, childbirth, post-partum care, and preventive medical care.”  Portland City Code (PCC) 9.01.040(B)(1). This leave law uses the OFLA’s definition of “family member.”
• Absences protected and defined by Oregon Domestic Violence Leave, (see above).
• Absences due to an office closure caused by a publicly declared public health emergency.
• Time needed to care for a child whose school or place of care has been closed due to a public health emergency.
• Time needed to care for a family member who has been determined by a public health care authority or health care provider to present a health risk to others.
• Time when the employer was required by state law or regulation to exclude the employee from the workplace for health reasons. 

 
Sick leave must be paid if the employer employs six or more employees, even if some of those employees work outside the city of Portland or outside the state of Oregon.  The “City” is defined as “the City of Portland, Oregon, or the area within the territorial City limits of the City of Portland, Oregon, and such territory outside this City over which the City has jurisdiction or control by virtue of ownership or any Constitutional or Charter provisions, or law.”  Portland Sick Time Administrative Rules SL 1.02(1).  For more information, go to: https://www.portlandoregon.gov/sicktime/
 
Similar protections were instituted in Seattle in 2012, so if your business has employees located in or whose work takes them to Seattle, you will want to be aware of this.  For information, go to: http://www.seattle.gov/civilrights/sickleave.htm.
 

10. Oregon Bereavement Leave. **New in 2014**

As of this year, OFLA was amended to provide eligible employees with up to two weeks of unpaid bereavement leave (per death) in the event of the death of one or more family members, up to the employee’s full OFLA yearly entitlement.  Again, “family member” is defined under OFLA to include “an employee’s spouse; same-sex domestic partner; biological, adoptive, step, foster child or parent; parent-in-law; grandparents and grandchildren; and any person with whom the employee has an in loco parentis (i.e., in place of parents) relationship.”  ORS 659A.150(4).
 
We hope you have found this summary helpful.  Of course, this is not a comprehensive explanation of the eligibility requirements, nor does it address best practices for responding to employee absences or requests for time off that may implicate protected leaves. We encourage you to work with your qualified staff and advisers to ensure that (a) your policies are up to date and adequately address these leave situations, and (b) your personnel and supervisory staff are trained to appropriately address these issues.  This should be done as soon as possible in light of the new leave laws that went into effect recently.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.