A Brief Guide to Critical Differences Among Four Types of Time Off



HR inboxes see a constant stream of time off requests. Becky wants time off to travel to Spain, Lawrence is requesting time off for parental leave, and Rashida needs time off to heal from a workplace injury.


Rules and regulations are attached to each request above. The question is, can you recognize them? FMLA, ADA, and parental leaves can be quite confusing to distinguish given the nuances of each, so we broke them down for you.


1. The Family and Medical Leave Act (FMLA)

The FMLA is a crucial law when it comes to understanding time off. According to official FMLA guidelines, it up to 12 weeks of job-protected unpaid leave from work can be provided.


(However, military caregivers are entitled to up to 26 weeks of leave in a single 12-month period.)


Who is Eligible

The FMLA applies to schools, both private and public, regardless of the number of employees. At other public entities which have 50 or more employees within a 75-mile radius, employees fall under FMLA if they have been employed for at least 12 months, have worked 1,250 hours as of their leave date.


Reasons It’s Used/What it Covers

There are generally only four qualifying reasons for which time off would be covered under the FMLA:

§ for baby-bonding/adoption/foster care placement,

§ caring for a qualifying family member with a serious health condition,

§ an employee’s own serious health condition, and

§ military caregiver’s leave or qualifying exigency leave


Important Considerations

Another important basic aspect under this law is that the 12 weeks that eligible employees are entitled to does not have to be taken all at once, depending on the reason the leave is taken for.

One of the most important aspects of this law is the “right of reinstatement” following an FMLA leave of absence. Once this leave has concluded, the employee is entitled to be restored to the same job or an “equivalent job” with the same pay, benefits, shift and location.


2. The Americans with Disabilities Act (ADA)

The ADA was enacted in 1990 and its purpose as it relates to employers is to prohibit them from discriminating against applicants and employees because they have a disability.


Who is Eligible

A key element to note about the ADA is that only those employers with 15 or more employees are covered by the Act.


Situations It Covers

Such employers must provide a reasonable accommodation to qualified individuals who are disabled by a health condition and are absent as a result, imposing an undue hardship on the employer. If the employee can no longer perform an “essential function” of their job, then the employee is covered.


Important Considerations

Unlike the FMLA, the ADA does not have a specific designated amount of time that a reasonable accommodation must be provided for – the accommodation must continue absent undue hardship to the employer.


Undue hardships are often the most misunderstood and misapplied aspect of the law. This is a vital limitation on an employee’s right to reasonable accommodation under the ADA; however, it is not something that can be invoked by the employer simply because the accommodation request is inconvenient. Rather, in order to claim an undue hardship as a means to deny a disabled employee an accommodation, including a leave of absence as an accommodation, it must be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business.


The ADA can impact pregnant employees, as well. If an employee needs to take time off for medical reasons sooner or more often than expected because she is disabled by a pregnancy-related condition, the employer can require that she verify such absences with documentation. The ADA Amendments Act of 2008 made changes to the definition of “disability” under the ADA and thereby made it easier for employees to show they have a pregnancy-related condition that may entitle them to a reasonable accommodation under the ADA, though pregnancy itself is not a disability. It is important to note that federal and state anti-discrimination laws prohibit employers from discriminating on the basis of gender, including pregnancy, when it comes to application of a company’s policies and practices.

The employer must tread carefully, though, before disciplining or terminating employment under such circumstances because if challenged, the employer will be required to cite evidence that it treated similarly situated non-pregnant employees the same way.


3. Employer-Provided Parental Leave

Parental leaves of absence provided by employers, rather than those required by law such as under the FMLA, have increasingly become more common for both mothers and fathers.


Who is Eligible

If no applicable employment contracts or federal or state laws, such as FMLA apply, then any parental time off to which employees are entitled is governed only by employer policy or practice, absent an employment contract stating otherwise.


Situations It Covers

Taking time off to BOND with a newborn, adopted child, or placement of a foster care child,


Important Considerations

It is worth noting that the federal Equal Employment Opportunity Commission (EEOC) has taken the position that employers need to treat female and male employees the same when it comes to maternity and paternity leaves of absence. According to the EEOC, "when an employer does grant maternity leave, the employer may not deny paternity leave to a male employee for similar purposes, e.g., preparing for or participating in the birth of his child or caring for the newborn. Accommodating female but not male employees constitutes unlawful disparate treatment of males on the basis of sex." This is why it is necessary that employers offer the same policy for both genders.


4. Vacation

Your basic, run-of-the-mill paid time off. Employers may offer this completely at their own discretion. That means Becky’s Spain vacation doesn’t fall into any classification of time off.

The employer, though, has discretion to decide whether to offer paid vacation in the first place, and if so, how much to provide, when and how it accrues and the circumstances under which it can be used. However, be sure to become aware of any applicable state laws that address the issue as well.



Complex Situations Call for Expertise

While this basic information is important to know, and the government provides official guides, complicated situations arise. A trusted partner with risk management expertise can guide you through the complexities of paid time off.

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Berkley Public Entity proudly consults with our partners on their employment liabilities as they request. Please contact us if you are interested in a partnership that provides this value to you.


Phone: (844) 972-2736

Fax: (609) 963-3349

BPEInfo@wrberkley.com

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