Intermittent Leave and Exempt Employees OFLA vs. FMLA

There are a few instances when the Oregon Family Leave and federal Family Medical Leave Act (FMLA) differ materially. One difference is how the laws treat pay for exempt employees taking intermittent leave. Generally, to be exempt, an employees must perform certain duties and be paid a salary. Oregon and federal law permit certain salary reductions that do not result in the loss of an employee’s exempt status. However, the laws differ with respect to salary reductions for partial day absences. The FMLA permits an employer to reduce an exempt employee’s salary for partial day absences, such as where the exempt employee is taking intermittent leave by working ½ days or a reduced daily schedule. In contrast, under OFLA, an employer will “jeopardize the employee’s exempt status if the employer reduces the employee’s salary for the part-day absence.” OAR 839-020-0240(15)(a-b). The result is that even though OFLA does not require an employer to pay an employee on leave, an employer will risk the employee’s exempt status if the exempt employee is not paid their full salary during intermittent leave.

This scenario arises for employers who are subject to OFLA, but not FMLA (for example because they employ 25-49 employees) and to employers who are subject to both laws where an employee has worked enough hours to be eligible for OFLA leave but not enough hours to be covered by FMLA.

This entry was posted in FMLA.

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