Time Off: Protected Leave Under the Family Medical Leave Act
Protected leave is a legal right to a certain amount of time off for a medical, family care, or personal safety reason. The federal Family Medical Leave Act (FMLA) entitles covered workers in all U.S. states to protected medical leave, but both Oregon’s protected leave laws and Washington’s protected leave laws are broader than the federal law and may provide additional benefits and leave protections.
Employees in Oregon and Washington are entitled to take leave from work for medical reasons, to care for a sick family member, to bond with a new child, and for personal safety or safety of a minor child from domestic or sexual violence. Oregon law also entitles some employees to take a leave of absence for bereavement due to a death in the family. The amount of leave to which you are entitled, and whether the leave time is paid or unpaid, depends on whether you work in Oregon or in Washington (or both) and on the type of leave you are using.
Employees in Oregon and Washington are entitled to use protected time off for many kinds of medical and family-care situations, and are entitled to return to their original jobs after using protected leave. Depending on the reason for using the leave and whether the need for leave is known in advance (like a scheduled surgery and recovery), employers may be allowed to require employees using protected leave to notify the employer in advance and to submit limited documentation or information about the leave from a medical provider.
Protected leave is time off work. It is different than a job accommodation or remote work. Employees with disabilities, who are pregnant or who have from pregnancy-related health issues, or who have been impacted by domestic or sexual violence may have additional and separate rights to job accommodations in addition to their rights to protected leave. Schuck Law assists employees with enforcing their rights under both these types of laws.
Your Rights Are Protected
Employees who have not been paid in full or who have been fired, demoted, denied job restoration, or otherwise suffered retaliatory changes to their employment may be entitled to legal remedies including unpaid wages and late-payment penalties, reinstatement and back wages, lost income due to a demotion or termination, and damages for emotional distress.
Under these laws, employers are often also required to pay the legal fees and costs of a successful employee. The attorneys at Schuck Law work on a contingency basis to recover lost pay and damages for employees at no out-of-pocket cost to our clients.
If you believe your employer has failed to pay sick time to which you are entitled, denied you the use of protected leave time or job restoration, or retaliated against you for using or asking about protected leave, the attorneys at Schuck Law may be able to help.
Call 360-566-9243 to find out if Schuck Law can help you and to set up a phone consultation with our attorneys.
Protected Leave: Frequently Asked Questions
Can my employer deny my medical leave request?
Employers can deny medical leave requests if the employee doesn’t meet eligibility requirements, fails to provide a medical certification for the leave, or if the length of the leave exceeds legal protections. Generally, the employer has to give a written notice of leave approval or denial and an opportunity to correct any missing or incomplete documentation. Employers generally cannot deny leave merely because the leave is inconvenient for the employer, but they can require notice when the employee knows of the need for leave in advance, like for a pre-scheduled medical appointment. Employers cannot retaliate against employees for asking about or requesting protected leave.
Is medical leave paid or unpaid?
Federal law providing protected medical leave doesn’t require the leave to be paid, but both Oregon Paid Leave and Washington Paid Leave programs provide partial wage replacement through the state. Employees can also use any sick leave, vacation time, or other paid time off during a protected medical leave.
Is protected medical leave the same as short-term disability?
No. Short-term disability insurance provides partial income replacement when employees cannot work due to a serious injury or illness. Unlike FMLA and other state protected leave laws, short-term disability insurance provides financial support rather than job protection during a leave. Short-term disability insurance doesn’t provide a legal right to medical leave or job reinstatement, but employees who have short-term disability insurance can often use it to supplement their income while also using FMLA for job protection during the same medical leave period.
What is a “serious health condition”?
A serious health condition can include an illness, injury, or other medical condition that involves either short- or long-term inpatient care, or continuing treatment by a healthcare provider. Examples include but are not limited to serious illnesses like cancer, major health events like heart attack or stroke, severe injury, chronic or degenerative disorders, pregnancy complications, and mental or behavioral health conditions requiring professional treatment. Generally, to be considered “serious” under a protected medical leave law, the condition must either require periodic or ongoing medical treatment or a course of treatment over several days or more, or it must be a critical or terminal health condition. Eligible employees can use protected medical leave due to their own serious health condition, or to care for a close family member with a serious health condition.
What job protections do I have during a medical leave?
Generally, employees who are eligible for protected medical leave have the right to return to the same position or an equivalent job with the same pay, benefits, and working conditions. The employer cannot retaliate against an employee for taking leave or interfere with employees’ leave rights. However, employees aren’t protected from mass layoffs, closures, or other job changes that would have affected the employee regardless of the leave status. Employers also don’t have to provide more medical time off than what state and federal laws require, even if the employee remains medically unable to return to work.
Does my health insurance continue during a protected medical leave?
Yes, generally employers must maintain employee health insurance during a protected medical leave on the same terms that apply when the employee is actively working. That means employers must continue to pay any employer-paid portion of the employee’s health insurance premiums, but can also require the employee to pay their ordinary share.
Federal Law: The Family Medical Leave Act (FMLA)
The federal Family Medical Leave Act (FMLA) provides job-protected leave time for most employees who have worked at least 1,250 hours for the employer in the year before the leave, and whose employers have at least 50 employees. Under FMLA, qualifying employees can take up to 12 weeks of FMLA leave time per year to care for their own serious health condition or to care for a family member with a serious health condition (including attending medical appointments and assisting with day-to-day personal care needs), or to bond with a new baby or a newly-adopted or new foster child. This time off can be extended in some circumstances to provide care for a servicemember in the family who has a serious illness or injury.
Covered employees are entitled to use FMLA time off for any or all of these reasons and are generally entitled to return to the same job, with the same pay, benefits, and schedule when returning to work after FMLA leave.
In most circumstances, FMLA leave time for personal or family medical care can be taken either continuously or intermittently as needed, and can be used to cover part-day or full-day absences. Employers can only count the time an employee actually uses for FMLA leave towards the employee’s total amount of FMLA leave time.
Under FMLA, the leave time can be unpaid, although employees can apply any available paid sick time, vacation, or other paid time off to the absences. Paid leave laws in Oregon and Washington can sometimes also apply concurrently with FMLA to the same leave period, but only when the leave of absence is covered by both FMLA and the state paid leave law. Regardless of whether additional leave laws apply, employers who are covered by FMLA must provide qualifying employees with 12 weeks of FMLA leave time, even if it is unpaid or the employee doesn’t have any vacation or other paid time off available. This is true even if the employee previously used their sick leave or paid time off for other reasons before needing to use FMLA.
Because both Oregon and Washington allow employees to use paid sick leave and paid family medical leave for some situations that aren’t covered by FMLA, whether FMLA leave and another type of protected sick time or family medical leave will apply to the same circumstances or the same time period depends on the reason for the leave and the type of leave you are using. In some circumstances, both FMLA and another protected leave law may apply to the same leave, but that is not always the case. Your employer cannot reduce your entitlement to FMLA leave because you used a different type of protected leave that isn’t covered by FMLA or that you are legally entitled to take in addition to FMLA. In those cases, employees are entitled to use up to the full amounts of protected leave provided under each of the different laws.
Employers cannot fire or retaliate against employees for asking about their rights to use FMLA leave or for using FMLA leave to which they are entitled. Employees who have been denied the use of protected FMLA leave time, wrongfully fired or demoted, or who suffered retaliation for asking about or using FMLA leave may have legal claims against the employer for money damages, legal costs and fees, and other remedies.
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