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When Are Employee Absences Protected By Law?

By Jaime Lizotte, HR Solutions Manager at ComplyRight, Inc.

Your employee Dan is out of the office. He’s exhausted his PTO bank and is taking more days off than allowed. In addition to not paying him for the time, you’re considering writing him up – or possibly even firing him. Not so fast …

Employees can take time off from work, including a prolonged leave of absence, for various reasons covered by federal or state law. While it is important to apply work rules consistently, you also need to be aware that absences protected by law must be allowed – even if it conflicts with your company policies or attendance rules.

Let’s look at the major employee leave laws:

The Family and Medical Leave Act of 1993 (FMLA) applies to private employers with 50 or more employees, and to public agencies with any number of employees. The FMLA requires covered employers to provide eligible employees with up to 12 or 26 weeks of unpaid leave for a birth or adoption, to care for a close family member with a serious health condition, for an employee’s own serious health condition, or to care for a covered family service member/veteran with a serious injury or illness.

The Americans with Disabilities Act (ADA) applies to companies with at least 15 employees and requires employers to consider making accommodations for individuals with a disability. Under the ADA, a disability could mean anything from a sleep disorder or depression to a chronic disease. In some cases, an extended leave of absence (even longer than the time mandated by federal or state family/medical leave laws) may be required as an ADA accommodation.

The Pregnancy Discrimination Act (PDA) applies to employers with 15 or more employees. While it does not require you to provide maternity leave or other special benefits to pregnant women (as required by the FMLA and many state/local laws), it DOES prohibit discrimination against pregnant applicants and employees. It also requires you to apply the same rules and benefits for pregnancy-related absences as available for other medical absences. For example, if company policy allows employees to take up to 10 weeks of medical leave, the same must be provided for pregnancy-related absences.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) requires both private and public employers to provide employees with leave to serve in the military. USERRA also requires employers to reinstate employees returning from military leave, grant seniority and applicable benefits to returning members and to train or otherwise qualify employees returning from military duty.

Under Title VII of the Civil Rights Act (Title VII), employers have a duty to accommodate the religious activities of employees, which may include allowing time off for certain holidays or religious practices. Employers are not required to make religious accommodations if they pose an undue hardship on the business, so all requests should be evaluated on a case-by-case basis by your HR department.

State and local family/medical leave laws

Many states, cities and local governments have laws that differ from and/or give employees greater leave rights than the FMLA. They may, for example:

  • Apply to smaller employers
  • Have less stringent requirements for employee eligibility
  • Provide longer leave periods
  • Expand the definition of serious health condition
  • Apply to individuals other than immediate family members as defined by the FMLA
  • Require paid leave instead of unpaid leave
  • Provide leave for circumstances beyond the scope of the FMLA (such as parental leave for school activities, leave for organ donations, etc.).

Carefully monitor employee absences

No matter whether it’s PTO to take a dream vacation or medically necessary covered leave, it’s important to accurately record absences. The Attendance Calendar Smart App allows you to document and handle all attendance issues quickly and thoroughly.


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