Ask HR: Employee needs time off for surgery- What type of leave is that?

Dear HR:

My current employee has asked about taking time off to have a surgery. They anticipate being off for a couple of months during recovery and are hoping to be able to continue employment after they return from their previously planned two week cruise at the end of the summer.  Would this time off be something that falls under the Oregon Family Leave Act (OFLA) or the federal Family and Medical Leave Act (FMLA)?


HR Answer:

A surgery could be considered a “serious health condition” under the FMLA/OFLA. An employee may take FMLA/OFLA protected leave for their own serious health condition or for a serious health condition of a qualifying family member. FMLA/OFLA will not protect absences resulting from personal time off, such a vacation or a cruise subsequently taken after a qualifying medical leave. Only leave for treatment and/or recovery of their serious health condition is protected.

Keep in mind that their serious health condition could also be a disability. Under both the ADA Amendments Act (ADAAA) and the state law, if their condition substantially limits one or more major life activities, it may be a disability. Employees may seek accommodation of their disability via a leave of absence for treatment/recovery or a part-time or reduced schedule to allow them to return to work in a modified manner.

If you would like assistance with the ADA, FMLA, or OFLA determinations and tracking, or if you have questions about other employment issues, please feel free to contact us.