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Employees may require time off for a variety of reasons, such as personal health issues or family emergencies. Employers are required by federal and state leave laws to grant leave to their employees under specific circumstances.

Employers should consider their obligations under:

  • The federal Family and Medical Leave Act (FMLA), if applicable
  • The federal Uniformed Services Employment and Reemployment Rights Act (USERRA)
  • The federal Americans with Disabilities Act (ADA), if applicable
  • Any applicable state and local laws on employee leave, including laws about paid sick leave

This Compliance Overview provides an extensive summary of the compliance rules employers should consider when evaluating employees’ leave requests.

Key Compliance Steps

  • Determine which leave laws apply to your organization. Review employee leave policies and practices for compliance with applicable laws.
  • Train supervisors on leave policies.
  • Administer employee leaves in a consistent and nondiscriminatory manner across your organization.

Employee Leave Laws

At the federal level, the three primary laws that employers may need to comply with when handling leave requests and creating leave policies are the FMLA, ADA, and USERRA, along with state and local laws that impact employee leaves.

State leave laws often provide greater protections to employees than federal leave laws. Also, state and local laws tend to change more frequently than federal laws, which means that employers need to monitor legal developments to stay up-to-date.

Employers should make sure their leave policies are consistent with applicable laws and are administered correctly. In some circumstances, more than one type of leave law may apply to an employee’s request for time off. In these situations, the employer should generally comply with the leave rule that is most favorable or generous to the employee. Also, where possible, employers should consider running different types of employee leaves concurrently to minimize an employee’s leave entitlement.

Compliance Tips

Employers should also be aware of the risk of legal claims for interference, retaliation, and discrimination when managing employee leaves and should consider the following compliance tips when managing employee leaves:
  • Determine which employee leave laws and policies may apply to an employer’s leave request.
  • Make sure that any managers or supervisors involved in the employee leave process receive training on the employer’s leave policies.
  • Administer the employer’s leave policies in a consistent and nondiscriminatory manner across the organization.
  • If an employee’s leave is covered under more than one leave law or policy, determine whether the leave periods can run concurrently to reduce the amount of time off.
  • Do not delay designating an eligible employee’s absence for an FMLA-qualifying reason as FMLA leave.
  • Remember the employer’s obligation to provide a reasonable accommodation under the ADA.
  • If required, continue group health plan benefits during the leave.

Federal Leave Laws

Leave Law

 

Covered Employees

 

Description

 

Health Plan Coverage

 

FMLA Employers with 50+ employees Provides eligible employees with unpaid, job-protected leave for specified family and medical reasons. For an employee on FMLA leave, group health plan coverage must be maintained on the same terms as if the employee continued to work.
ADA Employers with 15+ employees Employees with disabilities must have access to leave on the same basis as all other similarly situated employees. In certain situations, leave may be considered a reasonable accommodation under the ADA. An employer must generally treat employees on leave under the ADA the same as similarly situated individuals. Thus, if the employer maintains coverage for employees on leave for reasons other than disability, it must treat employees on disability leave in the same manner.
USERRA All employers Provides protections to individuals who are absent from employment due to military service. May require paid leave. Employees who leave their jobs for military service have the right to continue group health plan coverage for up to 24 months.

Family and Medical Leave — FMLA

The FMLA provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons. Private-sector employers are covered by the FMLA if they have 50 or more employees during 20 or more calendar workweeks in the current or previous calendar year. Under the FMLA, eligible employees may take up to 12 workweeks of unpaid FMLA leave in a 12-month period for one or more of the following reasons:

  • The birth of their child or placement of a child with the employee for adoption or foster care, and to bond with the newborn or newly placed child.
  • To care for their spouse, child, or parent who has a serious health condition, including incapacity due to pregnancy and for prenatal medical care.
  • For a serious health condition that makes the employee unable to perform the essential functions of their job, including incapacity due to pregnancy and for prenatal medical care.
  • For any qualifying exigency arising out of the fact that a spouse, child, or parent is a military member on covered active duty or has been notified of an impending call or order to covered active duty.

In addition, eligible employees may take up to 26 workweeks of FMLA leave during a single 12-month period to care for a covered service member with a serious injury or illness when the employee is the spouse, child, parent, or next of kin of the service member.

Health Plan Benefits — While an employee is on FMLA leave, the employer must maintain the employee’s coverage under any group health plan on the same terms as if the employee continued to work. An employee, while on leave, is required to pay the employer their portion of the group health benefit premiums.

Job Restoration — While an employee is on FMLA leave, the employer must maintain the employee’s coverage under any group health plan on the same terms as if the employee continued to work. An employee, while on leave, is required to pay the employer their portion of the group health benefit premiums.

Disability Discrimination — ADA

The ADA prohibits employment discrimination on the basis of disability and requires that covered employers provide reasonable accommodations to employees with disabilities. Employers are covered by the ADA if they have 15 or more employees.

Leave Requests — According to the Equal Employment Opportunity Commission (EEOC), employees with disabilities must have access to leave on the same basis as all other similarly situated employees. Also, in certain situations, leave may be considered a reasonable accommodation under the ADA. An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, so long as it does not create an undue hardship for the employer. That is the case even when:

  • The employer does not offer leave as an employee benefit.
  • The employee is not eligible for leave under the employer’s policy.
  • The employee has exhausted the leave the employer provides as a benefit (including leave exhausted under a workers’ compensation program, or the FMLA or similar state or local laws).

Health Plan Benefits — An employer must generally treat employees on leave under the ADA the same as similarly situated individuals. That is, if the employer maintains coverage for employees on leave for reasons other than disability, it must treat employees on disability leave in the same manner.

Return to Work — If leave is granted under the ADA, an employee with a disability is entitled to return to work to the same position he or she had unless the employer demonstrates that holding the position would impose an “undue hardship.” If an employer can demonstrate that holding the position is an undue hardship, the employee must be reassigned to a vacant equivalent position. If no vacant equivalent position is available, the employer must then consider reinstatement to a vacant lesser position. If the employer has no option but to reinstate the employee to a vacant lesser position, the employer is not required to provide the employee with the equal pay and benefits that the employee may have had in their original position. If there is no vacant lesser position available, the employer does not have to reinstate the employee. In this situation, the employer must be prepared to prove that no other reinstatement options were available without imposing an undue hardship on the employer.

Military Leave — USERRA

USERRA provides protections to individuals who are absent from employment due to military service. USERRA applies to all employers, regardless of size. Under USERRA, employers must:

  • Re-employ individuals who are absent from employment by reason of service in the uniformed services.
  • Restore seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services.
  • Provide any additional seniority, rights, and benefits that the person would have attained if the person had remained continuously employed.

If an employer has a formal leave policy that provides additional rights or continuation of benefits to employees who are absent from work, an employer must apply those policies to individuals absent from work due to their service in the uniformed services. This means employers must provide paid military leave if comparable leaves are paid.

Health Plan Benefits — An employer must allow individuals absent due to uniformed service to continue health insurance coverage for themselves and their dependents. If benefits are cancelled because the employee did not elect to continue coverage or failed to pay premiums, the employer must restore to the employee benefits that are equivalent to those the employee would have had if leave had not been taken, including family or dependent coverage.

Re-employment Rights — To be eligible for re-employment, an individual generally must not have:

  • Accumulated more than five years of uniformed service-related absences from a position of employment with this employer (with some exceptions); or
  • Been released from service under dishonorable or other punitive conditions.

An employee generally must provide the employer with advance notice of service obligations, when reasonable. In addition, the employee must report to work or submit an application for re-employment to the employer within the following time frames:

Length of Service Action Time Allowed
Less than 31 days Report to work By the beginning of the first regularly scheduled work period on the first full calendar day after completion of uniformed service, plus time required to return home safely and an eight-hour rest period.
31-180 days Make application for re-employment No later than 14 days after completion of uniformed service.
More than 180 days Make application for re-employment No later than 90 days after completion of uniformed service.

Employees who return from uniformed service must be re-employed according to the following schedule of priority:

  • If the employee’s service was for less than 91 days, the employee should be placed in the position that would have been held had employment not been interrupted. If the employee does not qualify for such a position, the employee should be placed in the position held before beginning their tour of duty.
  • If the employee’s service was for more than 90 days, the employee should be placed in a position of similar seniority, status, and pay.

State Leave Laws

Many states have enacted their own laws to provide different, or additional, leave rights for employees than those provided under federal law. Most states have their own family and medical leave laws, and many states provide leave rights for other reasons, such as bereavement leave or civic duty leave.

If both the FMLA and state law apply to the same situation, the employer must follow the law that gives the employee greater rights. Where an employee’s leave is covered by the FMLA in addition to a state leave law, the employer must determine whether the state law permits (or prohibits) the leave to run concurrently with the federal FMLA.

In addition, a growing number of states and localities are enacting paid sick leave laws and laws that require employee leave for any reason of the employee’s choosing. Covered employers in states and localities with these types of leave laws should review their leave policies to make sure they comply with the laws’ requirements. Because each state has its own set of leave laws, employers should stay up-to-date on the employee leave laws that are applicable to their organizations.

Whether an employee is entitled to continue their health plan coverage during a state-mandated leave depends on the terms of the applicable state leave law. If the state leave law does not address health plan coverage requirements, an employer should review the terms of its health plan documents to determine the eligibility rules that apply to the coverage.

Summary

At the federal level, the FMLA, USERRA, and the ADA require covered employers to provide leave in certain situations. Many states have their own laws regarding employee leave, including family and medical leave, school leave, and organ donation leave. As a growing trend, states and localities are adopting their own paid sick leave laws. It’s vital for employers to stay up-to-date with federal and state employee leave laws to make sure they are staying in compliance.

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