839-009-0450 - Job Protection

839-009-0450. Job Protection

(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.

(BLI 10-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11)

Stat. Auth.: ORS 659A.093(6)

Stats. Implemented: ORS 659A.090 - 659A.099

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