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Leaves of Absence Four Key (and Surprising) Points for Navigating FMLA Leave

Complying with the various legal and practical requirements of the Family and Medical Leave Act (FMLA) and its regulations is an ongoing challenge for employers, particularly when it comes to questions about when an employee qualifies for leave. Here are some key points regarding the FMLA that employers may want to consider.

  1. Employers’ more generous leave policies do not relieve them of their FMLA leave obligations.

The FMLA entitles eligible employees to take up to 12 months of unpaid, job-protected leave in a 12-month period for specific personal and family medical reasons, including birth and care of a newborn child, an employee’s serious health condition, or the serious health condition of certain family members.

Some employers, however, may implement more generous policies and allow employees to take leave for a broader range of reasons than the FMLA requires. For example, although the FMLA allows leave to care for an employee’s parent, child, or spouse, an employer may establish a policy that allows an employee also to take leave to care for non-FMLA-covered family members, such as a cousin or grandparent.

Similarly, employers may operate in states with their own more generous leave laws. For example, the California Family Rights Act requires that employers provide job-protected leave for employees to take care of siblings, grandparents, grandchildren, domestic partners, and a “designated person.” The FMLA does not require any such leave.

Employers should be aware that they cannot count leave taken for non-FMLA-covered family members against employees’ 12-week FMLA leave entitlement. So, for example, an employee who takes six weeks of leave to care for her or his grandparent under a company’s policy or state law is not burning any FMLA hours. Instead, the employer still must provide employees with their full 12 weeks of FMLA leave for FMLA-qualifying reasons.

  1. Prior temporary employment may count toward FMLA eligibility

For an employee to be eligible for FMLA leave, the employee must have worked for the employer for a total of at least 12 months, worked at least 1,250 hours during the 12 months prior to taking the leave, and be employed at a worksite at which the employer employs at least 50 employees within a 75-mile radius. Perhaps surprisingly, prior temporary work for a company counts against the time worked for an employer for purposes of FMLA eligibility even if a third-party temporary service agency directly employed and paid the worker. So, if an individual worked at a particular employer’s worksite through a temporary agency for six months, the employer that hires the staffing agency’s employee (“temp to perm”) would have to count those six months and the hours worked during them towards FMLA eligibility requirements.

  1. Employers may not rely on “undue hardship” to deny FMLA leave

Under the Americans with Disabilities Act Amendments Act (ADAAA), covered employers must provide qualified employees with a disability reasonable accommodations to perform their jobs’ essential functions unless doing so would impose an “undue hardship” on the employer. However, unlike the ADAAA, the FMLA does not authorize an “undue hardship” defense for employers; instead, except in very limited circumstances, employers must provide FMLA leave to qualifying employees regardless of the impact on the employers’ operations.

  1. “Maternity leave” is an ambiguous term

Employers and employees often refer to an employee taking “maternity leave.” This term, though, could be considered ambiguous because it does not specify whether the employee is on leave because of pregnancy or a pregnancy-related condition or instead is on parental leave for bonding purposes.

Federal and state laws provide employees with various types of leaves related to pregnancy and pregnancy-related conditions, for bonding with a new child, and as a reasonable accommodation. Distinguishing between the reasons for the leave may be critical in determining eligibility for and the amount of leave for which the employee may qualify.

FMLA regulations specify that birthing parents may be able to use 12 weeks of FMLA leave for the birth of a child, for prenatal care, for periods of incapacity related to pregnancy, or for a serious health condition following birth. Non-birthing parents may take FMLA leave for the birth of a child and to care for a spouse who is incapacitated due to pregnancy or childbirth.

Further, while the ADAAA does not consider pregnancy itself to be a “disability,” some pregnancy-related medical conditions may qualify for ADAAA coverage, requiring covered employers to provide reasonable accommodations to employees with pregnancy-related disabilities. Similarly, the newly-enacted Pregnant Workers Fairness Act also requires that employers reasonably accommodate pregnant employees.

Also, some states distinguish between pregnancy-related disability leave and “baby bonding” leave. For example, employees may take up to 17.3 weeks of pregnancy-related disability leave under California’s Pregnancy Disability Leave statute, followed by up to 12 weeks of bonding leave under the California Family Rights Act.

Because statutes provide distinct leaves for pregnancy-related and bonding purposes, employers may find it more useful to characterize leave as “pregnancy” and “parental” or “bonding” leave instead of the more ambiguous “maternity leave.”

Key Takeaways

The FMLA and its regulations present ongoing challenges. Employers may want to review their leave policies and procedures with regard to FMLA leave versus their more generous leave policies, FMLA eligibility, and leaves surrounding the birth or adoption of a child.

This article is based on a May 2023 presentation by Ogletree Deakins’ shareholders Charles L. Thompson, Stacy M. Bunck, L. Eric Dowell, and John G. Stretton at the firm’s 2023 National Workplace Strategies Seminar in San Diego, California.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XIII, Number 153

About this Author

Charles Thompson, Ogletree Deakins Law Firm, Employment Law Attorney

Charles L. Thompson IV counsels and defends employers in wrongful termination, discrimination, and other employment-related matters.  These areas include trade secrets and unfair competition, California and federal leaves of absence, ADA compliance, and wage and hour compliance.

Charles also represents employers in traditional labor law matters. He advises and represents employers in collective bargaining. He also represents employers in matters before the National Labor Relations Board, including in unfair labor practice and representation...

Office Managing Shareholder

Stacy M. Bunck is a Shareholder in the firm’s Kansas City Office, with extensive experience in employment-related disputes in various forums throughout the Midwest. She has experience defending allegations of discrimination, retaliation, harassment, and wrongful discharge, and defending FLSA collective actions.

In addition to employment litigation, Ms. Bunck drafts and reviews employee handbooks and policies, provides legal advice regarding various employment-related laws and regulations, litigation avoidance, and employment best practices, and conducts a wide range of workplace...

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Eric Dowell Labor and Employment Law Ogletree Deakins

Eric Dowell is a shareholder in the Phoenix office of Ogletree Deakins3, and represents employers in both the private and public sector in the areas of labor and employment litigation and counseling.  He assists employers on a wide variety of employment law matters involving employment discrimination, accommodating disabilities and family leave, sexual harassment, executive employment agreements, wrongful termination, employee training, investigation and discipline issues, workplace torts, personnel policies and manuals, corporate downsizing, trade secret/anti-piracy, non-compete...

John G. Stretton, Ogletree Deakins, noncompete confidentiality lawyer, wrongful termination attorney

John Stretton is a Shareholder in the Stamford office of Ogletree Deakins with nearly twenty years of experience. Clients view John as a resourceful counselor and aggressive litigator who never loses sight of a client's business objectives and need to establish value. In addition to providing proactive counseling and advice, John is frequently sought out to represent clients in discrimination, noncompete, confidentiality, wrongful termination, wage and overtime, breach of contract, unfair trade practices, intellectual property and complex litigation matters in state and...

Senior Marketing Counsel

In the Senior Marketing Counsel role, Zachary develops strategy for the firm’s blog and other content. He serves as a lead writer for articles and blog posts for publication on the firm’s website both individually and in consultation with firm attorneys. He also works closely with the Client Services department and firm attorneys to develop relevant content, including through use of webinars, publications, blogs, podcasts, and graphics.

Prior to joining Ogletree Deakins, Zachary served as a Senior Reporter for Law360, a leading online legal news publication, covering the sports and...