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Many employers have long-standing policies stating that an employee taking protected leave must exhaust all accrued paid time off before taking the leave as unpaid. From the employer’s perspective, this makes sense because it generally does not want an employee to return from extended leave only to take days or even weeks off for a vacation. However, each statutory leave law has different rules about whether these types of policies are permitted. Here is a quick rundown of what is permitted and what isn’t, depending on the leave law that applies to a particular employee’s leave of absence.

FMLA

The federal Family and Medical Leave Act (FMLA) provides eligible employees with unpaid, job-protected leave for certain qualifying reasons. These include but are not limited to an employee’s own serious health condition, care for a family member with a serious health condition, and parental leave. While FMLA leave is unpaid, the law permits an employee to elect, or the employer to require the employee, to use accrued paid time off concurrently during the FMLA leave period. When an employee uses accrued paid time off, the employee must follow the employer’s normal paid time off policy. So long as it is included in the employer’s policy, the employer can dictate the order in which an employee uses paid time off. For example, an employer’s policy can require an employee to exhaust all paid sick time first, then vacation time, and then any paid personal days.

OFLA

The Oregon Family Leave Act (OFLA) provides eligible employees with unpaid, job-protected time off for certain qualifying reasons. These include bereavement, pregnancy disability, and care for a child who suffers from an illness, injury or condition that requires home care. While leave under OFLA is unpaid, an employee is entitled to use accrued paid time off. Additionally, the employer may require an employee to use accrued paid time off and may determine the order in which paid leave must be used pursuant to a written policy. However, the employer must provide the employee with written notice that the accrued paid time off must be used either prior to the employee beginning OFLA leave or within five business days of the employee’s notice of unforeseeable OFLA leave.

OMFLA

Just as with OFLA, employees are entitled to use any accrued paid leave during a period covered by the Oregon Military Family Leave Act (OMFLA). However, unless the terms of an agreement between the parties provide otherwise, the employee can determine the order in which accrued paid time off is used when more than one type of paid leave is available.

Paid Leave Oregon

An employer cannot require an employee to use accrued paid time off while receiving Paid Leave Oregon (PLO) benefits. Rather, PLO allows the employee to choose whether to supplement benefits with accrued paid time off. If the employee chooses to supplement PLO benefits, the employer can designate the order in which accrued paid time off is used.

However, when an employee elects to use accrued paid time off in conjunction with PLO benefits, the employer can choose either to cap an employee’s use of paid time off at 100 percent of the person’s full wage replacement when combined with PLO benefits or it can allow the employee to use accrued paid time off in excess of the employee’s usual pay. For employers that choose to cap an employee’s use of paid time off at 100 percent of full wage replacement, the Employment Department should share the employee’s weekly benefit information so the employer can determine how much paid time off the employee can use.

ADA disability leave

Under the Americans with Disabilities Act (ADA), a leave of absence may be a reasonable disability accommodation. In these circumstances, an employer does not have to provide paid leave beyond that which is provided to similarly situated employees. However, employers should allow an employee taking leave as a reasonable accommodation to exhaust accrued paid time off first and then provide unpaid leave.

Conclusion

Navigating paid time off in conjunction with an employee’s protected leave can be tricky. To avoid making a misstep, employers should review their policies to be sure they comply with each leave law. Importantly, when more than one leave law applies, the rule most favorable to the employee will apply. When in doubt, employers should consult with employment law counsel.

Amy Angel is a partner at Barran Liebman LLP. She advises employers on a full range of employment issues, including complex leave situations and drafts of leave policies. Contact her at 503-276-2195 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91ÊÓƵ guarantees the accuracy or completeness of any information published herein.