Compliance Services FAQ

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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).

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.