Major Federal Laws Protecting Employee Leave
Employees can take time off from work, including a prolonged leave of absence, under various conditions covered by federal and/or state law. While it is important to apply work rules consistently, be aware that absences protected by law must be permitted – even if inconsistent with your company policies or attendance rules.
- The Family and Medical Leave Act of 1993 (FMLA) applies to private employers with 50 or more employees, and to public agencies with any number of employees. The FMLA requires covered employers to provide eligible employees with up to 12 or 26 weeks of unpaid leave for a birth or adoption, to care for a close family member with a serious health condition, for an employee’s own serious health condition, or to care for a covered family service member/veteran with a serious injury/illness or military exigency.
- The Americans with Disabilities Act (ADA) applies to companies with at least 15 employees and requires employers to consider making accommodations for individuals with a disability. Under the ADA, a disability could mean anything from a sleep disorder or depression to a chronic disease. In some cases, an extended leave of absence (even longer than the time mandated by federal or state family/medical leave laws) may be required as an ADA accommodation.
- The Pregnancy Discrimination Act (PDA) applies to employers with 15 or more employees. While it does not require you to provide maternity leave or other special benefits to pregnant women (as required by the FMLA and many state/local laws), it DOES prohibit discrimination against pregnant applicants and employees. It also requires you to apply the same rules and benefits for pregnancy-related absences as available for other medical absences. For example, if company policy allows employees to take up to 10 weeks of medical leave, the same must be provided for pregnancy-related absences.
- The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) requires both private and public employers to provide employees with leave to serve in the military. USERRA also requires employers to reinstate employees returning from military leave, grant seniority and applicable benefits to returning members and to train or otherwise qualify employees returning from military duty.
- Under Title VII of the Civil Rights Act (Title VII), employers have a duty to accommodate the religious activities of employees, which may include allowing time off for certain holidays or religious practices. Employers are not required to make religious accommodations if they pose an undue hardship on the business, so all requests should be evaluated on a case-by-case basis by your HR department.
State and local family/medical leave laws
Many states, cities and local governments have laws that differ from and/or give employees greater leave rights than the FMLA. They may, for example:
- Apply to smaller employers
- Have less stringent requirements for employee eligibility
- Provide longer leave periods
- Expand the definition of serious health condition
- Apply to individuals other than immediate family members as defined by the FMLA
- Require paid leave instead of unpaid leave
- Provide leave for circumstances beyond the scope of the FMLA (such as parental leave for school activities, leave for organ donations, etc.).
When federal, state and local laws vary, employers must follow the law that benefits the employee the most.
Impact of ADA on Employee Leave
The ADA is another law that often comes into play when employees request time off. In addition to prohibiting discrimination against qualified individuals with disabilities, it requires you to make “reasonable accommodations” for individuals who qualify for protection under the ADA -- such as modifying a work area or granting time off.
Who is protected?
An individual with a disability is, by definition, someone who:
- Has a physical or mental impairment that substantially limits one or more major life activities
- Has a record of such an impairment
- Is regarded as having such an impairment.
Major life activities are activities that an average person can perform with little or no difficulty, such as walking, breathing, seeing, hearing, speaking, learning and working. Impairments may be physical or mental. Examples include: alcoholism, asthma, attention deficit disorders, blindness, blood disorders, brain/ head injuries, cancer, cardiovascular/heart problems, cerebral palsy, carpal tunnel syndrome, cystic fibrosis, depression, diabetes, disfigurement, drug addiction (excluding current illegal abuse), dyslexia, eating disorders, epilepsy/seizures, hearing impairments, HIV/AIDS, learning disabilities, mental retardation, missing digits/limbs, multiple sclerosis, paralysis, psychiatric disorders and speech impairments.
A qualified applicant/employee with a disability is someone who satisfies the skills, experience, education and other job-related requirements of the position, and who, with or without reasonable accommodation, can perform the essential functions of the position.
Duty to accommodate
You are required to make a reasonable accommodation unless it would impose an “undue hardship” – meaning the accommodation would be too expensive or difficult, based on company size, finances, number of employees and impact on the business.
Absences related to a person’s disability may qualify as reasonable accommodations under the ADA, including:
- An extended leave of absence
- Part-time, reduced or modified work schedules
- Periodic absences or time off (from partial days to full weeks) due to incapacity or treatment for a disability
An employee may be entitled to additional time off after the 12-week FMLA period is over. Never terminate an employee for exceeding his or her FMLA leave allowance until considering your obligations under the ADA, state law and/or company policy. When leave provisions conflict, you must follow those most beneficial to the employee.