Pregnancy & Family Medical Leave Laws
State and federal law both require certain employers to provide up to 12 weeks of leave a year to employees for a serious health condition of the employee or family member or for the birth or adoption of a child. The Oregon Family Leave Act (OFLA) applies to employers of 25 or more while the federal Family & Medical Leave Act (FMLA) applies to employers of 50 or more. In general, OFLA and FMLA provide 12 weeks of unpaid leave per year for the following purposes:
- For the birth, adoption or placement of a child (parental leave);
- To care for a family member with a serious health condition or the employee’s own serious health condition (serious health condition leave).
- For a pregnancy disability or prenatal care (pregnancy disability leave).
Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.
The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which covers employers with 15 or more employees, including state and local governments. Title VII also applies to employment agencies and to labor organizations, as well as to the government. Title VII’s pregnancy-related protections include:
An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition or because of the prejudices of co-workers, clients, or customers.
- Pregnancy and Maternity Leave
An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, an employer may require employees affected by pregnancy-related conditions to submit a doctor’s statement if an employer requires its employees to submit a doctor’s statement concerning their inability to work before granting leave or paying sick benefits.
Similarly, employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.
If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled due to pregnancy to do the same.
Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby’s birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.
Family Medical Leave Act and Oregon Family Medical Leave Act
Federal and state law each require that employers covered by the Family Medical Leave Act (FMLA) and the Oregon Family Leave Act (OFLA) provide employees with up to 12 weeks protected leave during a leave year if certain conditions are met.
- Who is covered?
Some employees are covered by both federal and state law, some only by state law, depending on the size of their employer, the length of time the employee has been employed, and the number of hours the employee has worked in the last 12 months for that employer. For instance, Oregon employers with only 25-49 employees need only comply with OFLA if the employee has worked 180 calendar days, and an average of 25 hours per week. OFLA is in many ways more generous than FMLA to employees.
- Leave for what circumstances?
Under OFLA, a covered employee can take medical leave for their own serious health condition, including pregnancy related conditions, and a serious health condition for an employee’s family member which includes:
- biological, adopted or foster child
- same sex domestic partner
- grandparent (as of 1/1/08)
- grandchild (as of 1/1/08)
An employee can also take leave for non-serious health conditions of a child that requires home care (“sick child leave”).
Under FMLA, an employee is covered for their own serious health condition, including pregnancy related conditions, and serious health condition of employee family members which include:
- biological, adopted or foster child
An employee can also take leave under FMLA for the following:
- newborn, newly adopted or newly placed foster child (“parental leave”)
- family member injured while on active military duty (up to 26 weeks)
- “qualifying exigency” to be determined by the Department of Labor related to family member’s active duty military call-up.
On January 16, 2009, the U.S. Department of Labor, which enforces FMLA, implemented amendments to FMLA regulations. The new regulations apply to Oregon employers with 50 or more employees who are required to comply with both FMLA and OFLA. One important change is the provision of additional leave for military members and their families, which is not provided under OFLA.