An employee asks for time off. Are you prepared to grant it? If so, how much time off must be provided and under what circumstances? We address these leave of absence questions in the following scenarios:

Request #1: Can I have time off for my illness? What if my child is sick?

There are a number of laws that may impact whether your company is required to provide an employee with time off for their illness or a family member’s illness, including:

• FMLA. Under the federal Family and Medical Leave Act (FMLA), eligible employees are entitled to up to 12 weeks of unpaid leave for, among other things, their own or a covered family member's "serious health condition." The federal FMLA covers employers with 50 or more employees, but several states have enacted their own family and medical leave laws, some of which apply to employers with fewer employees.
• ADA. If the employee's condition qualifies as a disability under the Americans with Disabilities Act (ADA) you may be required to provide a reasonable accommodation, such as an unpaid leave of absence, unless it would impose an undue hardship on the business. The ADA applies to employers with 15 or more employees, but some state laws have similar requirements that apply to employers with fewer employees. A family member’s disability, however, wouldn't entitle an employee to an accommodation under the ADA.
• State and local sick leave laws. More and more states and local jurisdictions are requiring employers to provide sick leave to employees. In many cases, the sick leave must be paid, but some jurisdictions allow smaller employers to provide unpaid leave. Typically, these laws entitle employees to leave for their own illness or a covered family member’s illness. Currently, the following jurisdictions require (or will soon require) employers to provide paid sick leave to employees:
  

  States:

  • Arizona
  • California
  • Connecticut (employers with more than 50 employees must provide paid sick leave to "service employees")
  • Maryland
  • Massachusetts
  • New Jersey
  • Oregon
  • Rhode Island
  • Vermont
  • Washington

  Other Jurisdictions:

  • Austin, Texas: (On August 17, 2018, a Texas appeals court temporarily blocked the city's Paid Sick Leave ordinance from taking effect on October 1, 2018 while the ordinance is challenged. We will continue to monitor the case and update this page as developments unfold.)
  • San Antonio, Texas (Effective August 1, 2019 for employers with more than five employees, but August 1, 2021 for smaller employers)
  • Chicago
  • Cook County, Illinois
  • District of Columbia
  • Cities in New Jersey: Bloomfield, Elizabeth, East Orange, Irvington, Jersey City, Montclair, Morristown, Newark, New Brunswick, Passaic, Paterson, Plainfield, and Trenton. State law will preempt these laws effective October 29, 2018.
  • Cities in California: Berkeley, Emeryville, Oakland, San Francisco, Santa Monica, San Diego, Long Beach (hotels with 100 or more rooms), and Los Angeles
  • Cities in Washington: Seattle, Tacoma, and SeaTac (hospitality and transportation industries)
  • Cities in Minnesota: Duluth (Effective January 1, 2020), Minneapolis and St. Paul
  • Montgomery County, Maryland
  • New York City
  • Philadelphia
  • Westchester County New York (Effective April 10, 2019)
    

    Updated: November 14, 2018

Request #2: I just found out that I am pregnant. Do I get pregnancy leave?

Whether an employer is required to provide leave for pregnancy-related conditions depends on a variety of factors, including employer size, state of operation, and how the employer treats other employees similar in their ability or inability to work.

• FMLA. The FMLA requires covered employers to provide female employees with job protected leave for incapacity due to pregnancy, for prenatal care, or for their own serious health condition following the birth of the child. Eligible employees may also use all or part of their FMLA leave entitlement to bond with their baby after childbirth or for a child's serious health condition.
• State Leave Requirements. While the FMLA applies to employers with 50 or more employees, several states have family leave laws that cover employers with fewer employees. Some states have pregnancy leave laws, and in some states, employers must provide a reasonable accommodation for pregnant employees, which may include a leave of absence. Check your state law to ensure compliance.
• EEOC Guidance. An employer is generally required to treat a pregnant worker the same as other employees who are similar in their ability or inability to work. This means an employer may be required to provide leave to pregnant employees if it does so for other employees similar in their ability or inability to work.

Note: While a typical pregnancy won't qualify as a disability under the ADA, complications during the pregnancy or childbirth may result in a disability requiring a reasonable accommodation, such as leave, unless it would impose an undue hardship.

Request #3: My spouse is pregnant. Can I have time off to bond with the baby once she is born?

Both mother and father are entitled to FMLA leave for the birth of their child or placement of a child for adoption or foster care. Your state may have similar requirements that apply to smaller employers. In the absence of a requirement, employers may choose to voluntarily provide bonding leave, but you must apply the policy in a consistent and nondiscriminatory manner.

Request #4: Can I take time off for two weeks of required military training?

Under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), all employers must allow employees to take time off to serve in the military, including training activities. Employees are generally entitled to an unlimited amount of leave for military training and drills. At the end of the leave, the employer must generally reinstate the employee as if he or she had not been absent. Additionally, many states require leave for state military service, including training.

Request #5: My spouse is in the Army and is deploying to Iraq. Can I take time off so I can make alternative childcare arrangements?

Under certain circumstances, employers covered by the FMLA must provide unpaid time off when an employee’s spouse, child, or parent is on covered active duty, or has been notified of an impending call to active duty. This leave is intended to allow eligible employees to take time off to address issues that arise when a covered service member is deployed, such as attending military-sponsored functions, making financial and legal arrangements, and arranging for alternative childcare. Note: Some states have their own family military leave requirements that cover employers with fewer employees and/or offer additional protections.

Request #6: I’d like to observe a religious holiday on Friday but the company is open. Can I have the day off?

Title VII of the Civil Rights Act ("Title VII") requires employers to provide reasonable accommodations for employees’ sincerely held religious observances and practices, unless doing so would impose an undue hardship. Generally, this means that covered employers must allow employees to take time off for religious reasons, regardless of whether the employer observes the holiday. Title VII applies to employers with 15 or more employees, but some states have similar requirements that apply to employers with fewer employees.

Request #7: Can I have time off for jury duty? Will I be paid during jury duty?

Under federal and most state laws, providing time off for jury duty is required. Employers are prohibited from disciplining or otherwise retaliating against employees who serve on a jury. Some states require employers to pay employees for jury service, which in some cases, can be the difference between payments received for jury service and the employee's regular wages.

Request #8: My child has a parent-teacher conference. Can I take time off to attend it?

Several states have adopted laws that grant employees time off to tend to certain routine family matters, such as school activities or parent-teacher conferences. Generally, these laws provide eligible employees with a certain number of hours of leave annually, per month, or per school year. States and jurisdictions with these laws include:

• California
• Colorado
• District of Columbia
• Illinois
• Massachusetts
• Minnesota
• Nevada
• North Carolina
• Rhode Island

Request #9: Can I have time off to vote in the election?

At least 30 states have adopted laws intended to ensure employees have sufficient time off to vote. Generally, voting leave laws require employers to grant a "reasonable" or "sufficient" amount of time off to vote. When making this determination, take into account the hours polls are open, the time it takes to vote, including driving time to and from the polls, and the employee's work schedule.

Request #10: Can I take unpaid time off this week and make up the time next week?

Allowing employees who are non-exempt from overtime, commonly referred to as hourly employees, to make up missed time in the following week may result in overtime pay obligations. A non-exempt employee who works more than 40 hours in any workweek is entitled to overtime pay. Employers are prohibited from averaging work hours over two or more workweeks. For example, if a non-exempt employee works 20 hours in workweek A and 60 hours in workweek B, the employee would be eligible for 20 hours of overtime for workweek B.

Conclusion:

Employers must comply with all applicable federal, state, and local leave requirements, some of which are covered above. It is a best practice to have written policies addressing leave entitlements that reflect current laws and company practices.