Benefits | 

Paid & Unpaid Leave: Who's Eligible?

When an employee asks for time off, employers must determine whether the employee is eligible for a leave of absence under federal, state, or local law and/or the employer's own policy. Below are various factors to consider when making these determinations.

#1: Are you considered a covered employer under a federal, state, and/or local leave law or is there a company policy that provides paid or unpaid time off to employees?

While some leave laws apply to all employers, others cover only employers with a certain number of employees. For example, the federal Family and Medical Leave Act (FMLA,) applies to employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year. If the employer doesn't meet this criterion, they're under no obligation to provide job-protected leave under the FMLA. However, a number of states have their own family and medical leave laws that cover smaller employers.

Recently, several jurisdictions have expanded which employers are covered by certain leave laws. For instance, effective January 1, 2021, the California Family Rights Act (CFRA) applies to employers with five or more employees (previously, it applied to 50 or more employees). When determining whether you're covered, be sure to apply the current rules.

Under some leave laws, employer coverage may also depend on where the employees are located. Employers should check the applicable leave law for specifics. If you're unsure whether you're a covered employer, consult legal counsel.

Voluntary Leave:

Many employers provide time off to employees even if they're not expressly required to do so. In such cases, it's still important to apply the policy consistently and avoid violating nondiscrimination laws.

#2: Does the individual requesting time off qualify as an eligible employee under the applicable leave law or company policy?

Most leave laws include requirements that employees must meet in order to be eligible for job-protected leave. For example, the FMLA requires that employees:

  • Work for a covered employer for at least 12 months;
  • Have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave; and
  • Work at a location where the employer has at least 50 employees within 75 miles.

Where leave is required, employers are prohibited from establishing more stringent eligibility rules than those set by the law.

Voluntary Leave:

Where leave is provided voluntarily, employers may generally set their own eligibility criteria, provided they don't violate nondiscrimination laws. Include all employee eligibility criteria in written policies and apply them consistently.

#3: Is the time off considered a covered absence under the applicable leave law or company policy?

Most leave laws cover absences for specific reasons, however, currently, two states (Maine and Nevada) have leave laws that cover all absences. Generally speaking, covered absences fall into a few different categories, some of which are outlined below:

  • Family and medical leave, paid sick leave, or paid family leave: Time off for an employee or family member's serious health condition or following the birth or adoption of a child.
  • Domestic violence/crime victims: If an employee or their covered family member is a victim of a crime or domestic violence, they may be entitled to time off to be present at legal proceedings, obtain an order of protection, seek medical treatment, or receive counseling services.
  • Public health emergency leave: Leave during a public health emergency to care for a child whose school or place of care is closed, to seek or obtain medical care associated with a communicable disease, or to self-isolate.

Note that many jurisdictions also require leave for pregnancy, voting, organ or blood marrow donation, school activities, and military purposes, among other reasons. Check your state and local laws to ensure compliance. Also, in recent years, many states and local jurisdictions have expanded the types of absences covered by their leave laws. Be sure your policies and practices reflect the latest requirements.

Voluntary Leave:

Where leave is provided voluntarily, employers may generally set their own rules for what absences are covered, provided they don't violate nondiscrimination laws. However, some jurisdictions that don't require employers to provide leave still have rules for employers that voluntarily offer leave. For instance, under Georgia law, sick leave isn't required but an employer that provides sick leave must allow an employee to use up to five days of the sick leave per year for the care of an immediate family member.

Include a list of covered absences in your written policies and apply them consistently.

#4: Even if the employee isn't entitled to leave under law or company policy, would they be entitled to time off as a reasonable accommodation under another law?

Under federal, state, and/or local law, employees may be entitled to a reasonable accommodation for:

  • A disability.
  • Sincerely held religious beliefs and practices.
  • Pregnancy and related conditions.

Under these laws, paid or unpaid leave may be considered a reasonable accommodation, absent undue hardship. Federal law generally covers employers with 15 or more employees, but many states and local jurisdictions have laws covering smaller employees.

If you're covered by a requirement to provide reasonable accommodations and an employee notifies you that there's a conflict with work, promptly have a dialogue with the employee to identify what, if any, reasonable accommodation should be provided.

Eligibility Notices to Employees:

Some leave laws require employers to notify employees about their leave eligibility and to notify them whether an absence will count against their leave allotment. For example, the FMLA requires employers to provide employees with a notice about their eligibility status the first time the employee takes leave for an FMLA-qualifying reason in the 12-month period. The notice must be provided within five business days of the initial request for leave or when the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason. Under the FMLA, employers are also responsible for designating leave as FMLA-qualifying and giving notice of the designation to the employee. This notice must be provided in writing within five business days of having enough information to determine whether the leave is FMLA-qualifying. State and local leave laws may also have notice requirements employers must follow.

Even in the absence of a requirement to provide such notices, when an employee requests time off, it's a best practice to notify them about their eligibility for leave and, if so, how the leave will be designated. This notification and designation should also be documented in the employee's personnel file.


Make sure you draft leave policies carefully, they comply with applicable federal, state, and local laws, and you apply them consistently.


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