OREGON Q&A: Track OFLA after workers’ comp claim is denied

Question: We have an Oregon employee who has been off work due to an injury for 10 weeks. The employee claimed that the injury was work related, so we didn’t count the time off under OFLA. But our workers compensation carrier recently denied the claim. Now that the claim isn’t covered by workers' compensation do they get OFLA protection for the time they’ve been off work? If they do, how much time do they have left—is it just 2 weeks or do they still have all 12?

Answer: Kudos for remembering that the Oregon Family Leave Act (OFLA) generally doesn’t cover time an employee has spent off work due to a work-related injury unless the injured worker refuses a suitable offer of modified duty work. (In contrast, the federal Family and Medical Leave Act (FMLA) applies to work-related injuries that qualify as a serious health condition.) Under OFLA, if the leave is initially treated as a workers’ compensation claim, and later the claim is denied, you can retroactively count the absence against the employee’s 12 weeks of OFLA leave. Best case scenario would be to notify employees at the beginning of their leave that if their claim is denied, or if they refuse a suitable offer of modified duty work, any time off will be counted against their OFLA entitlement. In situations where it’s unclear whether an employee’s workers’ comp claim will be accepted, you may tentatively designate the time off as OFLA leave, but if the claim is accepted, you have to restore the employee’s OFLA balance. For details, see the OFLA regulations at OAR 830-009-0240(11). Also check out our Model Forms, OFLA: Leave Request Form, OFLA: Eligibility Notice, and OFLA: Leave Designation Letter.