How to Support Employees Who are Ineligible for FMLA or Other State Laws

In the U.S., the Family and Medical Leave Act (FMLA) is a federal protection for many employees, providing job-protected, unpaid leave for qualified workers who meet tenure requirements at companies greater than 50 employees. Several states have also enacted stronger protections for employees at smaller companies.

However, many employees - especially part-time workers, new hires, and those at smaller companies in certain states - are not eligible for FMLA or other state leave protections.

If an employee needs to take leave and is not covered under one of these state laws, here are several strategies to consider to support your employee.

1. Implement Company Leave Policies

You can support your employees by implementing your own company leave policies that give options for employees that need to take time off for medical, family, or personal reasons. There is a lot of flexibility on how these plans are created, so you can ensure they fit the stage and business needs of the company.

In general, having even simple leave policies in place reduces any potential discrimination risk that may come from granting employees different amounts of leave on a one-off basis.

Tips:

• You can offer unpaid leave if your company is not in a position to support paid leave yet. Policies can always be strengthened over time.

• Consider tenure-based policy lengths that still options for newer employees.

• Design policies that are consistent yet flexible, ensuring fairness while accommodating individual situations.

2. Utilize Other Various PTO Options

Work with the employee to exhaust all other available paid time off including vacation days, personal days and sick leave to support their time away and provide maximum salary continuation.

Tips:

• Clearly outline to employees the different types of vacation, sick and/or personal leave they have access to and help them understand how these days can be used in various situations.

3. Americans with Disabilities Act (ADA) with Leave as an Accommodation

Even when employees are not eligible for FMLA, the Americans with Disabilities Act (ADA) can require companies to provide leave as a reasonable accommodation for employees with qualifying disabilities. Under the ADA, if an employee has a disability that substantially limits one or more major life activities, they may be entitled to leave or other accommodations to support their medical needs.

While pregnancy itself is not a disability under ADA, some pregnancy-related conditions may be considered disabilities under the law.

Key Considerations for ADA Leave:

• Employers should engage in an interactive process with employees to determine what accommodations are reasonable (i.e. not create undue hardship for the company), which may include a period of unpaid leave.

• Leave as an accommodation under the ADA is not unlimited but should be considered if it allows the employee to return to work after recovery.

• In some circumstances, intermittent leave may be an option, where the employee takes multiple (shorter) periods of time off, rather than an extended time away.

How to Implement:

• Establish a process for employees to request accommodations, including leave, and ensure HR or management is trained to handle these requests in compliance with ADA regulations.

• Document the interactive process with the employee, outlining the accommodations being offered and the rationale behind decisions.

4. The Pregnant Workers Fairness Act (PWFA)

The Pregnant Workers Fairness Act (PWFA), which was passed in June 2023, applies to all private and public sector employees with at least 15 employees and provides protections for pregnant employees and those with conditions related to pregnancy or childbirth.

Under the PWFA, employers are required to provide reasonable accommodations to pregnant employees unless it causes undue hardship to the business. This can include modified duties, flexible hours, or leave.

Leave Accommodations Under the PWFA:

• Pregnant employees may need leave as a reasonable accommodation if they are unable to perform their job due to pregnancy-related conditions, even if they do not qualify for FMLA.

• Leave could be in the form of short-term unpaid leave or modified duties that allow the employee to remain engaged with the workplace until they can return to full duties.

Conclusion

While not every employee may be eligible to take leave under FMLA or another state law, companies can still provide support during what is likely a stressful time in the employee’s life.

Going the extra mile to exhaust all options can foster a positive culture, increase retention and help ensure the success of your business.