Employee leave laws are incredibly complex with overlapping regulations, evolving expectations, and legal landmines. As a result, employers often can’t see “the forest for the leaves” and can be left tangled in confusion and exposure, trying to navigate the FMLA, the ADA, the PWFA, and state and local laws and internal policies all at once.
HR professionals, business owners, and in-house counsel seeking to stay compliant and protect their organizations should consider federal, state, and local employment laws to avoid common pitfalls while creating a strong foundation for leave-related policies and procedures.
Understanding the Legal Landscape
At the heart of the “forest” are two federal statutes that make up a significant focus for employers and employment lawyers. The Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) are heavyweights and should be treated as such.
- FMLA grants eligible employees up to 12 weeks of unpaid, job-protected leave per year for certain medical or family reasons.
- ADA, meanwhile, requires employers to provide reasonable accommodations—which may include leave—for qualified individuals with disabilities.
Yet, those two leave laws are only part of the story. The most recent addition to the mix is the federal Pregnant Workers Fairness Act. In addition, many states and municipalities—including those states within Galloway’s regional footprint—have paid or unpaid leave mandates in a variety of circumstances which adds an additional layer of complexity on top of federal leave requirements. This can result in employers facing conflicting or overlapping obligations when an employee requests a leave.
Each situation is incredibly fact-specific, and a careful assessment of what laws apply, what the employee is requesting, and how internal policies line up should be considered.
Common Pitfalls Employers Face
With such complexity, it is no surprise that even well-intentioned and well-informed employers can make mistakes. Some frequent missteps include:
- Failing to recognize a leave request: Employees are not required to use the words “FMLA” or “ADA” or other magic words to trigger legal obligations.
- Inconsistent documentation: Employers may track some leaves informally, but inconsistent practices increase the risk of claims.
- Assuming the leave clock resets automatically: Leave entitlements must be tracked correctly under the appropriate rolling or calendar year method.
- Not engaging in the interactive process: Especially after FMLA leave ends, failing to explore accommodations under the ADA can land an employer in a compromised position.
When an employer is unsure how to proceed, that is a sign to pause and seek guidance – before the situation escalates beyond control.
Importance of Interactive Process
Under the ADA and the PWFA, employers must engage in a good-faith, individualized interactive process to determine whether additional leave or other accommodations would enable the employee to resume or continue to work. In this scenario, reasonableness may require additional unpaid leave, a modified schedule, or a temporary reassignment.
Employers should not treat the end of FMLA as the end of their legal responsibility, as the ADA may still be in play if a disability is involved.
Best Practices for Managing Employee Leaves
Employers can consider the following practices to navigate leave laws while mitigating risk successfully:
- Create a centralized leave policy: Ensure leave policies are written, accessible, and compliant with federal, state, and local laws, including guidance on how leave requests should be submitted and evaluated.
- Train managers on leave triggers: Managers are often the first point of contact, and as the “first line of defense,” they can be equipped to recognize when an employee’s comment or behavior could trigger a legal obligation before the employee formalizes the request.
- Coordinate leave types thoughtfully: FMLA, paid sick leave, PTO, and ADA accommodations can intersect. A coordinated approach ensures leave is not improperly denied or unnecessarily extended.
- Maintain clear communication: Open dialogue with employees helps set expectations and reduce confusion. Standardized forms, written confirmations, and consistent follow-ups can make a significant difference.
- Document: Inconsistent or undocumented leave decisions may create liability. Employers may benefit from detailed records of requests, approvals, medical certifications, and communications, which should be maintained regularly.
- Know when to call counsel: Seasoned and experienced HR professionals can encounter tricky situations. Consulting with an employment law firm can prevent a prolonged and costly problem later on.
Litigation Trends in Employment Law
An increase of leave-related litigation has involved claims of retaliation following protected leave, failure to accommodate under the ADA, interference with FMLA rights due to denial of additional leave, poor tracking, lack of documentation or misclassification, and disputes over “undue hardship” defenses by employers.
Generally, we see that courts expect businesses to have a process and to follow that process. Accordingly, employers manage people and risk.
Build a Culture of Compliance
With proactive planning, training, and legal support, employers can meet legal obligations while supporting their workforce. Confusion can be turned into clarity, and proactive compliance can allow employers to focus on creating a thriving business.
Disclaimer: This material is provided for informational purposes only. It is not intended to constitute legal advice, not does it create a client-lawyer relationship between Galloway and any recipient. Recipients should consult with counsel before taking any action based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions.
Doris Bobadilla, Esq.
Licensed in Louisiana, Mississippi, Texas, and Florida
dbobadilla@gallowaylawfirm.com | 985-674-6680
Wendell Hall, Esq.
Licensed in Louisiana and California
whall@gallowaylawfirm.com | 985-674-6680
Matthew Williams, Esq.
Licensed in Mississippi and Alabama
mwilliams@gallowaylawfirm.com | 228-214-4250