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Q: I understand there have been some changes to the Oregon Family Leave Act (OFLA) that may affect my company. Can you tell me what those changes are and what the effects will be?

A: There were three major legislative changes to OFLA this session that will take effect Jan. 1, 2008.

First, House Bill 2460 revised the OFLA statutes to prohibit OFLA leave from running while an employee is out on a compensable workers’ compensation injury. The bill also provides that OFLA leave will automatically begin to run when an otherwise OFLA-eligible employee out on a compensable workers’ compensation injury refuses a bona fide offer of light-duty or modified work before the worker is medically stationary.

Second, House Bill 2485 requires employers to allow employees to use any accrued paid sick leave while on OFLA leave, even if the employer’s policy would not otherwise allow the employee to do so. Prior to this bill, OFLA only required employers to allow the use of paid sick leave if the need for OFLA leave would be consistent with the employer’s usual sick-leave policy or if the employee was taking parental leave.

Third, House Bill 2635 allows employees to use OFLA leave to care for the employee’s grandparents or grandchildren who have serious health conditions. The important piece of this is that, because the federal Family and Medical Leave Act (FMLA) does not cover grandparents or grandchildren, an employee who is covered and eligible for both OFLA and FMLA who uses his or her 12 weeks of OFLA leave to care for a grandparent or grandchild has not technically used any FMLA leave and therefore has his or her entire 12 weeks remaining.

HB 2635 also creates a retroactive cause of action for retaliation under OFLA that will likely resolve the dispute between Oregon state courts and Oregon federal district courts over whether such a claim is available under OFLA.

Q: With the different rules for OFLA and FMLA and discrepancies in who is eligible, covered and qualified, it seems almost impossible for an employer to sort through all of this. Is there an easier way?

A: It certainly does seem like a daunting task when you look at it in its entirety. What I always recommend to employers learning to deal with OFLA and FMLA is to pull out the rules each and every time, even when comfortable with them. Then, for each instance where it may be applicable, walk through the steps.

First, determine whether you are a “covered employer” under each statute. If not, you can stop right there. If you are covered under one or both, look to determine whether the specific employee at issue is an “eligible employee” under the statute you are covered by.

Although this is typically an easy analysis under OFLA, the answer under FMLA can be more difficult to determine. For example, while FMLA requires that the employee have been on your books for at least 12 months, those months do not have to be consecutive. Accordingly, a former long-time employee who returns to the company after a year away will meet the employment eligibility requirements as soon as he or she completes 1,250 hours of work, even if he or she does so in five months’ time. However, like with the “covered” status test, if the particular employee is not eligible, you can stop your analysis.

If the employee is eligible under one or both of the statutes, then proceed to determine whether the requested leave is for a qualifying circumstance. This is the step where you will look at whose medical condition is at issue and whether it constitutes a “serious health condition” under the statutory scheme at issue.

If you break your analysis down into the steps above, you should find that the application of either OFLA or FMLA to any circumstance is actually quite simple.

Mitch Baker is of counsel at the Portland office of Fisher & Phillips, one of the United States’ largest law firms that represent employers in labor and employment matters. Baker specializes in labor and employment law and employment discrimination. He can be reached at 503-242-4262 or [email protected]. Fisher & Phillips’ Web site is at www.laborlawyers.com.