At ReedGroup, we are proud to be a trusted source of information for our clients and their employees. Here are the key FAQs asked of us:

Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act of 1993 (FMLA) is a federal law that provides eligible employees of covered employers to take unpaid, job-protected leave for certain reasons. Covered employers include private-sector employers with 50 or more employees, as well as public-sector employers (such as federal, state, or local government agencies) and private elementary or secondary schools, regardless of the number of employees.

To be eligible for FMLA leave, employees must:

  • Have worked for at least 12 months for their employer;
  • Have worked at least 1,250 hours for that employer during the 12 months immediately preceding the leave; and
  • Work at a location where their employer has at least 50 employees within 75 miles.

Q: What reasons qualify for FMLA?

A: Eligible employees may use up to 12 workweeks of leave in a 12-month period for one or more of the following reasons:

  • The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care;
  • To care for a spouse, son, daughter, or parent who has a serious health condition;
  • For a serious health condition that makes the employee unable to perform the essential functions of his or her job; or
  • For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on coveredactive duty or call to covered active duty status.

An eligible employee also may take up to 26 workweeks of 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, son, daughter, parent, or next of kin of the service member.

Q: Can an employee become eligible for FMLA in the middle of a leave of absence?

A: Yes. If an employee takes a leave for an FMLA-qualifying reason but is not eligible at the time the leave begins and later becomes eligible during the leave, then the beginning of the leave will be designated as non-FMLA leave and the portion of the leave after the employee meets FMLA eligibility requirements can be designated as FMLA leave.

Q: To be eligible for FMLA, the employee must have worked 1,250 hours during the 12 months prior to the date the requested FMLA leave is to start. Does time spent working during a lunch break count as “hours worked”?

A: Time spent working during a lunch break can constitute “hours worked” if the employee is not completely relieved from duty during the lunch break. Even if the employer does not request or require the employee to work during lunch, those hours can be counted if the employer knows or has reason to believe that the employee is continuing to work.

Q: If an employee has almost 1,250 hours worked before the start of the leave, can an employer grant the leave as FMLA?

A: Per an employer’s policies, an employer can allow an employee to take a leave of absence even if the employee does not meet FMLA eligibility requirements, but an employer cannot count that time against an employee’s FMLA entitlement if the employee does not meet the FMLA’s rules on eligibility.

Q: Does a cold or flu qualify as a serious health condition under the FMLA?

A: Generally, no. Common ailments, such as a common cold, flu, ear ache, upset stomach, minor ulcers, and headaches (other than migraines), are not serious health conditions afforded FMLA-protected leave. But, if complications arise or inpatient hospital care is required, the common ailment may meet the requirements under the FMLA.

Q: Is substance abuse a serious health condition under the FMLA?

A: An absence due to treatment for substance abuse, including abuse of alcohol and drugs, may be covered by the FMLA if the employee’s situation meets the parameters of a serious health condition. However, FMLA-protected leave is not available for absences due to the employee’s use or abuse of the substance.

Q: Can a spouse take FMLA leave to attend a prenatal appointment?

A: No. A father can use FMLA leave to care for his spouse who is incapacitated due to pregnancy or child birth, to care for her during her prenatal care, or to care for her following the birth of the child if the spouse has a serious health condition. Absent the spouse’s incapacitation due to pregnancy or child birth and/or unless he is needed to care for her during her prenatal care, a father is not entitled to FMLA leave to attend the mother’s regular healthy prenatal care appointments.

Q: Can an employer require a doctor’s note for each instance of an intermittent absence?

A: No. If the employee has already submitted a medical verification from the employee’s health care provider indicating the frequency and duration of the intermittent leave needed, an employer cannot require an employee to submit a doctor’s note verifying each absence.

Americans with Disabilities Act (ADA)

Enacted in 1990, the Americans with Disabilities Act (ADA) prohibits discrimination against disabled individuals. Title I of the ADA, which governs employment discrimination, applies to employers with 15 or more employees, including state and local governments. Covered employers are prohibited from discriminating against qualified individuals with disabilities in hiring, firing, promotions, pay, and other terms and conditions of employment. Employers also have an affirmative duty to make a reasonable accommodation to allow a qualified applicant or employee with a disability to perform the essential functions of his/her job as long as it would not impose an undue hardship on the employer.

Is the ADA a leave of absence law or a law that requires employers to require workplace accommodations?

A: It’s an anti-discrimination law. The ADA prohibits discrimination against and requires workplace accommodations for qualified individuals with a disability and as the law has evolved, guidance from the Department of Labor and the courts have made clear that under certain circumstances, a leave of absence may be a reasonable accommodation.

Q: Can an employer enforce a 100% healed policy, requiring an employee to return to work with no restrictions?

A: No. 100%-healed policies violate the ADA. If an employee has a work restriction due to a disability (i.e., is not 100% healed), employers have an obligation to determine whether a reasonable accommodation could enable the employee to perform the essential functions of his/her job, absent an undue hardship.

Q: If an employee uses the full 12 weeks of FMLA leave for her disability but still needs five additional weeks of leave, does an employer have to grant the additional time off?

A: Maybe. The employer must provide the additional leave as a reasonable accommodation if the additional time off with allow the employee to return to work to perform his/her essential functions, unless the employer can show that doing so will cause an undue hardship. The EEOC takes the position that compliance with the FMLA does not necessarily meet an employer’s obligation under the ADA, and the fact that additional leave exceeds what is permitted under the FMLA, by itself, is not sufficient to show undue hardship. However, there may be legitimate reasons that establish undue hardship, such as the impact on an employer’s operations from the leave already taken and/or from granting additional leave. Also, the employer may consider whether other reasonable accommodations may enable the employee to return to work sooner than the employee anticipates, as long as those accommodations would be consistent with the employee’s medical needs and permit the employee to perform his/her essential job functions.

Q: Must an employee specifically state that they are seeking a reasonable accommodation?

A: No, an employee does not need to formally request an accommodation. The employee does not need to mention the ADA or request a leave as a “reasonable accommodation.” The employee’s request may come in any form: verbal, written, or through a third party. However, an employer has the obligation to provide a reasonable accommodation only for a known disability. In most cases, information about the employee’s need for time off or the employee’s inability to comply with an employer policy or perform certain job duties due to a disability will be sufficient to invoke the employer’s obligation to engage in an interactive process about possible reasonable accommodations under the ADA.

Q: Is an indefinite leave of absence required under the ADA?

A: No. While all accommodation requests for an extended leave of absence must be considered individually in light of the circumstances, generally a request for leave must have an estimated date for return to work, because without an expected end date, an employer is unable to determine whether the accommodation is reasonable.

Paid Family Leave

States are enacting paid family leave programs which permit eligible employees to receive partial wage replacement when they need time off of work to care for a family member with a serious illness or to bond with a new child. Some state programs also provide benefits for time off due to an employee’s own health condition. Depending on the state, PFL programs offer a state-administered benefit, or may permit an insured, or self-insured benefit.

Q: Which states have enacted mandatory Paid Family Leave programs?

A: California, New Jersey, Rhode Island, and New York currently have mandatory paid family leave programs. Washington State, Massachusetts, Washington, D.C., Connecticut, and Oregon have enacted programs that are in the process of being implemented.

Q: Do paid family leave programs provide employee job protection?

A: It depends. Some state-mandated programs do not provide job protection, but others do. However, to the extent that the FMLA or another state law (e.g., the California Family Rights Act) may apply to an employee’s leave, the employee’s time off may provide job protection.

Q: Does an employer have to provide paid family leave in addition to the FMLA?

A: If an employee is eligible for both state-mandated paid family leave and the FMLA, those leaves will run concurrently. However, if an employee is eligible for leave under one of the laws but not the other, it is possible that the employer will need to provide both at different times. For example, if a California employee needs family leave to care for a grandparent with a serious health condition, the employee may be entitled to California Paid Family Leave, but he or she will not be eligible for FMLA leave because the FMLA does not include grandparents as a covered family relationship.

Q: Are paid family leave programs mandatory?

A: Each state or locality that passes a paid family leave program defines which employers are covered by the law, and covered employers generally must comply with the applicable law. Some jurisdictions permit employers to operate their own paid family and/or medical leave programs in lieu of a state-operated program, but the employer’s own program must meet or exceed the benefits mandated by the state. In addition, the state may require that the employer’s program be approved before it can be used in place of the state plan.

Uniformed Services Employment and Reemployment Rights Act (USERRA)

USERRA, a federal law enacted in 1994, protects the job rights of individuals who serve in the military. In addition to prohibiting employment discrimination and retaliation against past and present members of the uniformed services, USERRA also establishes the right for military service members to be reemployed in their civilian jobs when they return from service.

Q: What is the key difference between military-related leaves protected by USERRA and by FMLA?

A: USERRA provides a job-protected leave of absence for an employee who is a military service member to fulfill military service obligations. The FMLA provides a job-protected leave of absence to employees who have family members who are military service members in order to deal with exigencies (circumstances) related to deployment or to care for a relative injured in military service.

Q: How many employees must an employer have to be covered by USERRA?

A: USERRA covers ALL employers, so the employer only needs one employee to be covered.

Q: What must the employee provide to the employer to be entitled to USERRA military leave?

A: An employee does not have to give an employer any paperwork when requesting USERRA leave. This means that the employee doesn’t even have to show enlistment papers or orders to service upon taking USERRA leave. An employee must give “advance” notice as is reasonable under the circumstances, but USERRA does not specify how much notice. The employee’s notice can be verbal or written. NO notice is required if military necessity prevents giving the notice, or if giving notice is otherwise “impossible or unreasonable.” Notice may be given by the individual or by a military officer (and the employer should also accept notice from a family member).

Q. Must an employer provide time off to employees who are called to duty by the National Guard or Reserves?

A. Yes, being called up by the National Guard or Reserves qualifies for a leave of absence under USERRA.

Q: Is an employee entitled to job restoration under USERRA?

A: Yes, an employee returning from USERRA leave is entitled to job restoration. Dishonorable discharge and a few other negative circumstances will disqualify an employee from reemployment rights (e.g., court martial, having gone AWOL, or being imprisoned by a civilian court). Also, the service member must return to work or apply for reemployment within specific time periods in order to be entitled to reemployment.

Q: Can an employer require an employee to use vacation time or paid sick leave for short leaves for military training?

A: No. The employer must allow the employee to use accrued paid vacation at the beginning of leave instead of unpaid leave, but cannot require the employee to do so.

State Temporary Disability Insurance

Temporary disability insurance (TDI) provides partial replacement income for employees who take a leave of absence due to their own covered serious health condition. TDI programs typically operate as an insurance program, where workers and/or employers pay in to a fund. Employees who need to take leave for their own illness or injury may draw on the policy’s benefits to provide partial wage replacement during leave.

Q: Which states offer temporary disability insurance?

A: Temporary disability insurance programs currently exist in California, Hawaii, New Jersey, New York, Rhode Island, and Puerto Rico. Washington State, Massachusetts, Washington, D.C., Connecticut, and Oregon have enacted programs that will provide similar benefits and are in the process of being implemented. Some TDI programs, such as those passed in New York, Washington, Massachusetts, Washington, D.C., Connecticut, and Oregon, are incorporated within a paid family and medical leave law.

Q: Do TDI programs provide employee job protection?

A: It depends. Some do not, but the FMLA or another state leave law may apply that may provide job protection. Other PFL laws, like the new Washington State program, incorporate job protection depending on eligibility.

Q: How does TDI interact with FMLA?

A: If the employee is eligible for the FMLA and TDI, and the leave reasons meet the requirements under both the FMLA and a state-mandated TDI program, the FMLA will run concurrently with the state TDI benefits.

Q: Who pays for state disability benefits?

A: It depends on the state. In some cases, benefits may be entirely paid through deductions from employee wages that are submitted to the state fund. In other states, benefits may be funded through a shared contribution from both employers and employees, or they could be entirely employer funded. Each state has different contribution rates as well as maximum deduction amounts.

Q: How long may an employee receive state disability benefits?

A: Again, it depends on the state program. A number of states offer 26 weeks of disability benefits, whereas California offers up to 52 weeks of benefits.

Paid Sick Leave

Paid sick leave refers to laws that require employers to provide paid time off when an employee is sick. . Typically, these laws require that employees be permitted to accrue a specified amount of paid sick time depending on the number of hours worked. Most state paid sick leave laws cap the number of hours that may be accrued or used each year. These mandated sick leave payments are paid through an employer’s normal payroll practices.

Q: Which states have paid sick leave laws?

A: Arizona, California, Connecticut, District of Columbia, Maine, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Michigan, and Washington State. Many other municipalities also have mandatory paid sick leave policies.

Q: How does paid sick leave differ from temporary disability insurance?

A: Paid sick leave can be taken, among other reasons, for routine medical needs, common ailments, and preventive medical care. Additionally, paid sick leave is paid via normal payroll practices, not through an insurance-based program.

Q: What types of leave reasons will qualify for paid sick leave?

A: Each state has its own approved leave reasons, but they typically permit leave for an employee’s or family member’s health needs. Many also allow leave when a place of business or child care are closed by an order of a public health official, or because of an employee’s or family member’s exposure to a communicable disease. Many also cover leave reasons related to domestic violence, sexual assault, or stalking.

Q: Does paid sick leave run concurrently with FMLA leave?

A: If paid sick leave is taken for routine medical needs, common ailments, and preventive medical care, it will not run concurrently with FMLA because it will typically not qualify for FMLA leave for a serious health condition. However, an employee with a serious health condition may be able to use paid sick leave to receive pay during a period of unpaid FMLA, depending on eligibility, in which case FMLA will run concurrently with paid sick leave.

Q: When does an employee qualify for paid sick leave?

A: Each state has different rules, but many allow employees to use paid sick leave on the 90th day of employment.

Short-term and Long-term Disability (STD and LTD)

STD and LTD are benefits offered by employers to provide wage replacement to employees who are unable to work due to a covered medical condition or disability. These programs are not mandated by law, except in a few states that have passed state disability programs (see State Temporary Disability Insurance section). In most cases, STD and LTD benefits are provided through private insurance or may be self-funded by an employer. In addition, many group disability policies are governed by the Employee Retirement Income Security Act, a federal law commonly known as ERISA, which can mandate certain administration and appeals processes.

Q: What is the difference between STD and LTD?

A: Both STD and LTD pay a percentage of an employee’s wages when the employee is unable to work due to an injury or illness. Although it depends on the policy, STD typically kicks in after an employee misses 7-14 days of work and provides a percentage (usually 40-60%) of wages for a number of weeks (often 26-52 weeks). LTD generally applies after STD has been exhausted and will provide a percentage of wages for a much longer period of time, such as 5-10 years or until age 65.

Q: Do STD and LTD apply to a work-related injury?

A: Generally, no. Worker’s compensation covers illnesses and injuries that occur on the job. STD and LTD policies usually exclude work-related health conditions and disabilities.

Q: Can an employee on FMLA leave receive STD benefits?

A: Possibly, but only for reasons that qualify for both. STD may apply when an employee is on FMLA leave due to his or her own serious health condition and that health condition qualifies as a disability. FMLA, however, may be used for reasons other than the employee’s own serious health condition, such as when caring for a family member with a serious health condition, for bonding with a new child, or for a qualifying military exigency. In addition, eligibility requirements may be different under the STD plan and the FMLA.

Q: Does STD offer job protection?

A: Generally, employer STD plans do not offer job protection. However, the employee might also qualify for leave under the FMLA, ADA, or state leave law that offers job protection. STD offers income replacement while an employee is out of work because of a disabling condition, but it usually does not, by itself, guarantee that the employee will keep his or her job or be returned to the same job when able to return to work.