Current through Register Vol. 63, No. 3, March 1, 2024
(1) An
employer must restore an employee returning from OMFLA leave, including
intermittent and alternative duty leave, to the employee's former position if
the job still exists, even if it has been filled during the employee's OMFLA
leave. The former position is the position held by the employee at the time
OMFLA leave began, regardless of whether the job has been renamed or
reclassified. (For example, a delivery driver must be returned to the same
route, at the same rate of pay and benefits, driving the same truck, delivering
the same goods, on the same shift and working from the same location as when
the driver started OMFLA leave.)
(2) Any worker hired during an eligible
employee's leave to perform the same work that the eligible employee performed
before the leave was taken is a replacement worker. When the eligible employee
notifies the employer that the employee is ready to return to work, the
employer must give that employee the opportunity to work any hours that the
replacement worker would otherwise have been scheduled to work.
(3) The employee is not entitled to return to
the former position if the employee would have been displaced if OMFLA leave
had not been taken.
(4) If the
position held by the employee at the time OMFLA leave began has in fact been
eliminated and not merely renamed or reclassified, the employer must restore
the employee to any available, equivalent position.
(a) An available position is a position that
is vacant or not permanently filled.
(b) An equivalent position is a position that
is the same as the former position in as many aspects as possible. If an
equivalent position is not available at the employee's former job site, the
employee may be restored to an equivalent position within 20 miles of the
former job site.
(5)
Unless the terms of a collective bargaining agreement, other agreement or the
employer's policy provide otherwise:
(a) An
employee on OMFLA leave does not accrue seniority, production bonuses or other
benefits that would accrue while the employee is working;
(b) An employee has no greater right to a job
or other employment benefits than if the employee had not taken OMFLA leave;
and
(c) An employee is subject to
layoff the same as similarly situated employees not taking OMFLA
leave.
(6) Except for
benefits used while on OMFLA leave, benefits an employee was entitled to prior
to starting OFMLA leave must be restored in full upon the employee's return to
work. The benefits do not have to be restored, however, if such benefits have
been eliminated or changed for similarly situated employees. This applies to
all benefit provisions.
(a) An employer
electing to continue health or other insurance coverage for an employee on
OMFLA leave may require that the employee pay only the same share of health or
other insurance premium during the leave that the employee paid prior to the
leave.
(b) If an employee cannot or
will not pay such costs, the employer may elect to discontinue benefit
coverage, unless to do so would render the employer unable to restore the
employee to full benefit coverage as required in section (6) of this
rule.
(c) If an employer pays any
portion of any employee's benefit coverage for employees on non-OMFLA leave,
the employer must pay that portion during OMFLA leave.
(d) If the employer pays (directly or
indirectly, voluntarily or as required by state or federal statute) any part of
the employee's share of health or other insurance premium while an employee is
on OMFLA leave, the employer may deduct up to 10 percent of the employee's
gross pay each pay period after the employee returns to work until the amount
is repaid.
(e) Unless the cause is
a serious health condition for which the employee would be entitled to OFLA
leave or another circumstance beyond the employee's control, if an employee
fails to return to work, the employer may recover the employee's share of
benefits paid by the employer. The employer may use any legal means to collect
the amount owed for the employee's share of benefits paid by the employer,
including deducting the amount from the employee's final paycheck.
(8) If an employee gives
unequivocal notice of intent not to return to work from OMFLA leave:
(a) The employee is entitled to complete the
approved OMFLA leave, providing that the original need for OMFLA leave still
exists. The employee remains entitled to all the rights and protections under
OMFLA, including but not limited to, the use of vacation, sick leave and health
benefits; except
(A) The employer's
obligations under OMFLA to restore the employee's position and to restore
benefits upon the completion of leave cease, except as required by federal
COBRA laws,
29
USC 1161 et seq.; and
(B) The employer is not required to hold a
position vacant or available for the employee giving unequivocal notice of
intent not to return.
(9) An employer may not use the provisions of
these rules as a subterfuge to avoid the employer's responsibilities under
OMFLA.
Stat. Auth.: ORS
659A.093(6)
Stats. Implemented: ORS
659A.090 -
659A.099
