• This applies only to employees of qualified employers. To qualify: 

  • The employer must have at least 50 employees within a 75-mile radius. 

  • The employee must have worked at least 1250 hours over the past year. 

• Employees must be eligible for job-protected leave.  

• If the employee has no physical job site, the headcount is based on their home base, the site to which they report, or the site from which their work is assigned. 

• Vacation time 

• Sick leave 

• PTO hours 

Intermittent Leave:  

• If necessary, employees can take leave in chunks.  

• Employees are entitled to return to the same or equivalent job after the conclusion of the leave period.  

• Employers may temporarily transfer employees on intermittent leave. 

• The employee must promptly return to work at the conclusion of leave. 

• The employer may request certification of need for the leave from the health care provider.  

• Brown v. BNSF Railway Company 

• Main takeaway: Employers can enforce the terms of approved leave. If the employee goes outside those boundaries and does not provide updated documentation, disciplinary action is allowed.  

• Employers can require a second opinion. 

• Employers can require employees to submit to a fitness-for-duty test before re-employment.  

• The employee specifically requests FMLA leave. 

• The employee requests time off for surgery, pregnancy, birth of a child, adoption, or treatment (e.g., chemotherapy or physical therapy)  

• The employee requests time off to care for a sick child, parent, or spouse. 

• The employee misses more than 3 consecutive days of work. 

• The employee misses work sporadically due to a chronic condition (e.g., migraines or asthma) 

• The employee is hospitalized overnight. 

• The employee requests leave for reasons related to a family service member. 

• Has not yet worked for the company for 12 months 

• Has not worked for at least 1250 hours 

• If they need more than the 12 weeks provided under FMLA  

• The nature and net cost of the accommodation 

• The overall financial resources of the covered entity 

• The overall size of the covered entity and the number of employees employed 

• The number, type, and location of the covered entity’s facilities 

• The effect of the accommodation on the facility's expenses and resources  

• The ability of other employees to perform their duties  

• The facility’s ability to conduct business 

• A person with a disability is someone who: 

• Has a physical or mental impairment that substantially limits one or more major life activities (eating, sleeping, movement, working, learning, sensory functions, cognitive functions) 

• Has a history or record of such impairment (e.g., cancer in remission) 

• Is perceived by others as having such an impairment 

• The ADA does not generally restrict the length of leave permitted. 

• Employees are entitled to return to their original position or another equivalent position for which they are qualified.  

• Under the PWFA, employers must engage in an interactive process to determine what reasonable accommodations are available for employees with pregnancy-related limitations.  

• The request does not need to be in writing or include special words. 

• Attend healthcare appointments 

• Recover from childbirth 

• Address other pregnancy-related medical conditions. 

• FMLA, ADA, and PWFA all prohibit retaliation  

• Performance should be managed without consideration of leave or medical conditions. 

• The employer may enforce work rules and notification requirements. 

• Adverse actions that would have occurred regardless of leave may be taken 

• ADA prohibits discrimination because of disability  

• States vary in requirements for paid time off and sick leave 

• When you hire in a new jurisdiction, you need to check on things like state paid sick leave laws, state nuances on PTO plans, state family medical leave laws or insurance plans, etc.  

• State laws will most likely kick in before federal rules do. The threshold is lower, meaning that different nuances and requirements for the employer are usually a bit more burdensome.  

• Some states require payout of unused PTO upon termination 

• California requires this 

• North Carolina requires this unless there is a written policy that states otherwise. 

• Many states mandate paid sick leave: 

• Alaska, Arizona, California, Colorado, Connecticut, DC, Georgia, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, Washington 

• Local laws on paid sick leave are applicable too 

• It is disputed whether employees end up taking more or less time off. 

• It is unclear if it is paid out upon termination. 

• It is unclear if it can double as mandated sick leave. 

• Voting Leave 

• Jury Duty Leave 

• Witness/Victim of Crime Leave 

• Safe Leave 

• Bereavement Leave 

• Organ and Bone Marrow Donation Leave 

• Civil Air Patrol Leave 

• National Guard Leave 

• School Activity Leave 

• States may impose more onerous standards than those contained in the FMLA, ADA, PWFA, and USERRA. 

• Employers must adopt multiple policies or follow the least restrictive set of laws. 

• Certain states treat paid leave as a form of wage earned, requiring unused but accrued leave days to be paid out.  

• Over 20 cities and counties require paid sick leave, but they often face state pushback. 

• Rhode Island became the first state to require workplace accommodations for employees experiencing menopause.  

• Illinois will require leave for employees during the hospitalization of a newborn in a NICU, regardless of length of service. 

• New York requires providing up to 20 hours of paid prenatal leave.  

• Nebraska requires paid sick leave beginning after 80 hours of consecutive employment.