Employee-requested leave can be a tough road for employers to travel. The cobblestone path includes state Paid Family and Medical Leave and Paid Sick and Safe Leave mandates. Maneuvering through the Family and Medical Leave Act can also be an uphill climb. And don’t forget the twists and turns of an employer’s own leave policies and practices.
That is a lot of ground to cover — Mercer GRISTs on PFML and PSSL exceed 100 pages alone — and yet, some employers even endeavor to go the extra mile. After all, state paid leave entitlements have duration limits, some have waiting periods, and all PFML mandates (except Oregon, for some) cap benefits at less than 100% of wages. Often, employers look to fill the gaps in state-mandated leave to create uniformity across a multi-state workforce. All employers should be aware of the speed limits imposed by these federal laws when designing and administering interconnected leave policies:
Title I of the Americans with Disabilities Act. One aim of this law is reasonable accommodation for disabled employees and applicants. EEOC guidance confirms that the ADA does not require paid leave beyond what the employer already provides as part of a paid leave policy. But an employer must consider providing additional unpaid leave as a reasonable accommodation if needed. An employer may deny a reasonable accommodation leave request by showing it would cause an undue hardship on operations or finances, but the burden of proof is relatively high. Reasonable accommodations necessitate an interactive process. It is unreasonable for an employer to expect periodic updates during the leave beyond a check on the employee’s progress.
The EEOC takes a dim view of a policy with a maximum leave duration, unless a reasonable accommodation exception exists for disabled employees. Similarly, EEOC has indicated that a “no-fault” leave policy violates the ADA if applied to a disabled employee who needs leave beyond the set period.
Another challenge occurs when separate departments (or third-party administrators) handle leave and disability requests. In 2022, EEOC won a pregnant employee’s extended leave case, largely because of a communication failure between the employer and its leave administrator.
Family Medical Leave Act. This law entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. An employer may require — or an employee may choose — to use accrued employer-provided paid leave (like vacation) during unpaid FMLA leave. The substitution rule does not apply if the employee is receiving Short-Term Disability or workers’ compensation benefits. An employer and employee may, however, agree (where state law permits) to supplement STD and workers’ compensation benefits with employer-provided paid leave. Recently, the DOL concluded that the FMLA substitution rule does not apply to leave compensated by a state or local PFML program. An employer and employee may, however, agree (where state law permits) to supplement PFML benefits with employer-provided leave. Note that some PFML programs explicitly allow an eligible employee to supplement PFML benefits with accrued paid leave, without employer consent.
Pregnancy Discrimination Act. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. In addition, employers must treat affected employees and applicants in the same manner as those who are similar in their ability or inability to work. EEOC guidance specifically prohibits forcing a pregnant employee to take leave when able to perform her job, even if the employer thinks it is acting in her best interest. An extremely narrow exception exists to the general ban on discrimination.
Employers must also allow pregnant employees to take leave on the same terms and conditions applicable to similarly situated employees who cannot work for other reasons. Duration of STD benefits for a pregnancy-related disability, for example, cannot be shorter than for other disabilities. If a facially neutral leave policy adversely affects pregnant women generally, the employer must prove the policy is job-related and consistent with business necessity. The EEOC found a 10-day ceiling on sick leave and a policy denying sick leave during the first year of employment disparately impacted pregnant women.
Uniformed Services Employment and Reemployment Rights Act. This law protects military servicemembers and veterans from employment discrimination based on their service and provides reemployment rights when the absence ends. Specifically, employers must provide the same non-seniority rights and benefits to covered servicemembers on USERRA leave that are available to similarly situated employees on comparable leaves. Over the past few years, several lawsuits have alleged employers violated this provision by not providing regular wages to employees on USERRA leave. Case in point is a 2023 federal appellate court opinion. A class of employees persuaded the court that the employer’s paid leave policies for jury duty, bereavement and sickness entitled them to paid leave for their short-term military leaves.
Employer actions. Here is a roadmap employers might consider following:
