At Cohen Employment Law, we understand that navigating leave and accommodation issues can be complicated. Several different laws—often overlapping with each other—need to be analyzed and applied, whether the need for a leave of absence or accommodation is due to a disability or other medical issue, pregnancy, military service, the birth of a child, religion, or some other reason. We have experience successfully litigating leave and accommodation issues before appellate and trial courts nationwide, counseling employees and employers through complex leave and accommodation requests, and drafting leave and accommodation policies under federal and state law. We stand ready to guide our clients through their leave and accommodation issues, no matter how challenging.
The FMLA provides eligible employees of covered employers with 12 weeks of unpaid leave each year for certain family and medical reasons, or 26 weeks to care for a covered servicemember. The law also entitles employees to return to their same or an equivalent job, requires employers to maintain health benefits while employees are on leave, and sets a number of other standards regarding notice, certification, and more.
To be a covered employer under the FMLA, a private sector employer must employ 50 or more employees in 20 or more workweeks in the current or previous calendar year. For purposes of employer coverage, the FMLA makes no distinction between full-time, part-time, temporary, or seasonal employees. Public sector employers are automatically covered regardless of how many employees they employ.
To be eligible for FMLA leave, an employee must satisfy four requirements:
(1) The employee must work for a covered employer.
(2) The employee must have worked for the employer for at least 12 months as of the date FMLA leave is scheduled to begin.
(3) The employee must have worked for the employer for at least 1,250 hours during the 12-month period immediately preceding the date FMLA leave is scheduled to begin.
(4) The employer must employ at least 50 employees within a 75-mile radius of where the employee works as of the date the employee gives notice of the need for FMLA leave.
An eligible employee of a covered employer may take leave under the FMLA for any of the following six reasons:
(1) To bond with a newborn child within one year of the child’s birth.
(2) To bond with a child for adoption or foster care who is placed with the employee within one year of the child’s placement.
(3) When the employee is unable to perform the functions of the employee’s job because of a serious health condition. A serious health condition for these purposes is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. Absent complications, conditions like the common cold, the flu, upset stomach, headaches, routine dental problems, and other similar issues do not rise to the level of a serious health condition.
(4) To care for an immediate family member (an employee’s spouse, parent, or child) with a serious health condition.
(5) Due to a qualifying exigency arising out of the fact that the employee’s immediate family member is a servicemember on covered active duty, under a call to covered active duty status, or has been notified of an impending call or order to covered active duty.
(6) To care for a covered servicemember with a serious injury or illness when the employee is the spouse, child, parent, or next of kin of the covered servicemember. (This is the only reason for leave that provides up to 26 weeks of leave.)
Both employers and employees have certain notice requirements they must comply with under the FMLA. All covered employers must maintain a written FMLA policy (typically contained within an employment handbook). After leave is requested, employers must provide an eligibility notice, rights and responsibilities notice, and designation notice. Employees must provide at least 30 days’ notice of the need for FMLA leave if the leave is foreseeable; if doing so is not possible for any reason, such as a medical emergency or an unexpected change of circumstances, notice must be provided as soon as possible. Notice from an employee may be oral or in writing and need not specifically reference the FMLA by name, but must include enough information to make the employer aware that the employee needs FMLA-qualifying leave.
Leave under the FMLA may be taken in a single continuous block, on an intermittent basis, or on a reduced schedule basis, though intermittent and reduced schedule leave are not available to bond with a newborn child or a child for adoption or foster care who is placed with the employee unless an employer agrees to such an arrangement. Employers are permitted to temporarily transfer employees on intermittent or reduced schedule leave to an alternative position that better accommodates recurring periods of leave.
The FMLA prohibits employers from interfering with an employee’s rights under the law and from retaliating against an employee for exercising their rights under the law. Interference may include refusing to authorize FMLA leave, discouraging an employee from using FMLA leave, failing to give required notice where doing so prejudices an employee, or manipulating circumstances to avoid providing FMLA leave (for example, transferring an employee to a different worksite to avoid employee eligibility). Retaliation may include demotions, suspensions, terminations, refusals to reinstate, or other adverse employment actions carried out because an employee took or attempted to take FMLA leave, testified or cooperated in an FMLA proceeding or investigation, or opposed or complained about an unlawful practice under the FMLA.
The ADA is a discrimination and accommodation statute, not a leave law (at least in the traditional sense). Nonetheless, leave for a limited duration may be available to employees under the ADA as a reasonable accommodation for a disability. Indeed, even an employee who exhausts all of their FMLA leave, or is not eligible for leave under the FMLA, may be separately entitled to leave under the ADA.
Unlike the FMLA, the ADA does not offer clear guidelines as to when or how much leave is permitted. Assessing the propriety of leave under the ADA is a fact-intensive inquiry. However, leave for an indefinite amount of time, or recurrent increments of leave with projected return dates that repeatedly prove inaccurate, may disentitle an employee to leave under the ADA.
USERRA entitles employees who serve in the military—including in the Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, and other reserve units—to certain reemployment protections to ensure that they can fulfill their service obligations without losing their civilian jobs or benefits. USERRA reemployment rights apply for service-related absences up to five years cumulatively, though some circumstances may extend the period (such as service-related injuries or extended mobilizations). Absent military necessity or impossibility, employees generally must provide their employers with advance notice of military service.
USERRA requires that employees returning from service must return to work within a set timeframe based on their length of service. In particular, employees whose period of service was less than 31 days typically must report back to work on the next regularly scheduled workday; employees whose period of service was 31 to 180 days typically must apply for reemployment within 14 days of the conclusion of their service; and employees whose period of service was greater than 180 days typically must apply for reemployment within 90 days of the conclusion of their service.
The ADA requires employers to provide reasonable accommodations to disabled employees to ensure that they are able to perform their essential job functions. This requirement is triggered as soon as an employee informs their employer that an adjustment or change at work is needed because of a disability—no specific legal language is necessary.
Upon receiving an accommodation request from an employee, an employer is required to either grant the employee’s request or engage in a collaborative dialogue referred to as the “interactive process” with the employee, whereby the employer may ask for more details about the limitations imposed by the employee’s disability, how the limitations affect the employee’s work, and what accommodations are needed to address those limitations. The employer should then implement a reasonable accommodation that enables the employee to perform the essential functions of their job.
The key exception to the ADA’s accommodation requirement arises if an accommodation would pose an undue hardship upon the employer, generally meaning that the accommodation would be too costly, disruptive, or difficult to implement based on the size, nature, or resources of the employer. This is a high bar for an employer to clear.
Potential accommodations are virtually limitless and necessarily vary depending on an employee’s needs. Examples include:
The PWFA requires employers to provide reasonable accommodations to employees affected by pregnancy, childbirth, or related medical conditions. “Related medical conditions” may include ectopic pregnancies, preterm labor, miscarriages, pelvic prolapse, nerve injuries, cesarean or perineal wound infections, gestational diabetes, preeclampsia, maternal cardiometabolic disease, hyperemesis gravidarum, anemia, sciatica, lumbar lordosis, postpartum depression, incontinence, vaginal bleeding, engorgement, mastitis, and more.
An employee can request an accommodation under the PWFA by informing their employer that an adjustment or change at work is needed because of some limitation arising out of the employee’s pregnancy, childbirth, or related medical condition. For example, the employee could say that they need time off to attend pregnancy-related medical appointments, or they need more restroom breaks due to their pregnancy.
As soon as an employer learns that an employee needs an accommodation, the employer is required to either grant the employee’s request or engage in a collaborative dialogue known to as the “interactive process” with the employee, whereby the employer may ask for more details about the limitations imposed by the employee’s condition, how the limitations affect the employee’s work, and what accommodations are needed to address those limitations. The employer should then implement an appropriate reasonable accommodation. Similar to the ADA, an employer does not need to provide an accommodation if doing so would pose an undue hardship.
Under Title VII, employers are required to reasonably accommodate employees’ sincerely held religious beliefs or practices. The need for accommodations typically arises when an employee’s religious beliefs or practices conflict with a requirement or practice of the employee’s employer or job. Common examples of religious accommodations include schedule changes to avoid working on holidays or the Sabbath, dress code modifications to allow employees to wear religious attire, changes to grooming standards to allow employees to maintain facial hair or certain hairstyles, providing time or space for prayer breaks, modifying food options to accommodate religious dietary restrictions, and excusing employees from tasks that conflict with their religious beliefs.
Obtaining a religious accommodation under Title VII requires an employee to make their employer aware of the need for an accommodation due to a conflict between the employee’s religious beliefs or practices and their work duties. Upon receiving this information, employers are obligated to either allow the accommodation sought or engage in a collaborative dialogue known to as the “interactive process” with the employee, whereby the employer may ask for more details about the employee’s religious limitations and what accommodations are needed to address those limitations. An employer does not need to provide a religious accommodation if doing so would pose an undue hardship.