Combatting the Risks of Departing Employees Part Five: Laws Providing Job-Protected Leave

fmla_employment_jpalmerReaders of recent updates to this blog have already been introduced to the employment at-will doctrine, as well as some common exceptions to at-will employment. In this piece, we will discuss an additional exception: Laws providing job-protected leave.  Although these laws vary in different states and jurisdiction, every employer is likely to face the scenario at some point where an employee is entitled to take leave that is not otherwise provided by ordinary employment policies, and the employer may very well have no choice but to allow the employee to take that leave.  Such situations include those described below:

Family and Medical Leave Act

Likely the most commonly invoked law guaranteeing job-protected leave is the Family and Medical Leave Act ("FMLA.").  The FMLA applies to all public agencies, public or private elementary or secondary schools, and private-sector employers with 50 or more employees who have worked 20 or more workweeks in the current or preceding calendar year.  Employers covered by the FMLA must allow eligible employees to take up to 12 workweeks of leave in a 12-month period for one of the following reasons:

  • The birth of a child or placement of a child with the employee for adoption or foster care;
  • To care for a spouse, son, daughter, or parent who has a serious health condition;
  • For a serious health condition that makes the employee unable to perform the essential functions of his or her job; or
  • For any qualifying exigency arising out of the fact that a spouse, child, or parent is a military member on covered active duty or called to cover active duty status.

Employees are eligible only if they have worked for that employer for at least 12 months and have worked at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave.  In addition, the employer must have at least 50 employees within 75 miles of the employee's work location.  Note, however, that the Department of Labor has adopted a special rule for telecommuting employees on this last point, whereby a telecommuting employee is eligible for FMLA leave if the office to which that employee reports or receives assignments has at least 50 employees within 75 miles.  In addition, telecommuting (and other offsite employees, such as truck drivers) count as being employed at that "home base" location, so those employees must be included in the total for determining FMLA coverage.

In addition, FMLA leave may be taken "intermittently," meaning that employees can use less than a full day of leave for a covered purpose.

Employees using leave must comply with the employer's usual and customary requirements for requesting leave and provide enough information for the employer to determine whether FMLA may apply.  The employee does not have to specifically mention FMLA, but she does need to provide sufficient information for the employer to determine whether the leave is covered.

Employees who use covered FMLA leave are entitled to be restored to his or her original job or an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.  In addition, FMLA leave cannot be counted against an employee under a "no-fault" attendance policy.  (Employers can, however, require employees to use any employer-provided leave, including paid leave, concurrently with FMLA leave.)  Employers who violate the FMLA can be subject to an investigation from the Wage and Hour Division of the Department of Labor, an action in court from the Department of Labor, and a private civil action by an affected employee.

Families First Coronavirus Response Act

Although FMLA leave is generally unpaid (absent employer policies providing for paid leave), the Families First Coronavirus Response Act ("FFCRA") provides dollar-for-dollar tax credits to certain employers (fewer than 500 employees) who provide paid leave for employees who miss work for reasons related to COVID-19.  Coverage allows workers up to 80 hours of paid sick leave for their own health needs or to care for family members, as well as up to an additional 10 weeks of paid family leave to care for a child whose school or place of care is closed or whose childcare provider is unavailable due to COVID-19 precautions.  Although offering this leave was originally mandatory, employers are no longer required to provide the paid leave (although, obviously, employers that do not provide the leave are not eligible for the tax credits). Currently, this leave is set to expire September 30, 2021.


While some states have separate laws providing rights similar to the FMLA, Ohio does not.  Employers in states other than Ohio, or who have employees in several states, should work with counsel to ensure they are compliant with all applicable legal requirements.

Ohio does, however, require employers to grant leave to employees for jury duty.  Employers must not require the employee to use annual, vacation, or sick leave for time spent responding to a jury summons, participating in the jury selection process, or actually serving on a jury.  Employees may be excused from jury duty, however, if it can be demonstrated that their presence on a jury would constitute an undue hardship to the employer.

Americans with Disabilities Act and Other Laws Prohibiting Disability Discrimination

Under the Americans with Disabilities Act ("ADA"), employers are required to reasonably accommodate employees with disabilities.  In some cases, an accommodation might include granting requests for disability-related leave, even when the employee might not otherwise be entitled to the leave under the FMLA or employer policy.  For example, an employee not yet eligible for leave under the FMLA because she has not worked for long enough may nevertheless be entitled to a short leave to accommodate a disability.  In addition, an employee who has exhausted all available leave might be entitled to a short extension of that leave.

State anti-discrimination laws, such as the Ohio Civil Rights Act, may provide similar requirements as the ADA.  In addition, the federal Pregnancy Discrimination Act extends the same protections to employees experiencing pregnancy-related impairments as offered to other temporarily disabled employees.

Generally, however, indefinite leave is not a reasonable accommodation, and employees might not be entitled to additional extensions if they have already been on leave for significant periods of time.  For example, courts have dismissed disability claims where employees sought an accommodation for additional leave where they had already used six months or more of guaranteed leave under collective bargaining agreements.

Employee Retirement Income Security Act

The Employee Retirement Income Security Act ("ERISA") imposes certain requirements on employers who offer employee welfare benefit plans.  ERISA also prohibits employers from interfering with employees' use of rights under benefit plans and from retaliating against employees who use those rights.  Therefore, to the extent employers offer disability leave or other benefits under plans governed by ERISA, then employees who use such leave or other benefits are protected from an adverse employment action based on such use.  In addition, employees who use ERISA-protected leave are entitled to return to the same job or to a substantially equivalent job.

Some plans are excluded from ERISA coverage, based on certain safe harbors.  When considering potential employment actions regarding an employee who has exercised any rights under ERISA, employers should consult with counsel to consider the application of ERISA and any safe harbors.


Although the laws described above are the most commonly applicable, bear in mind that there may be other circumstances requiring an employer to honor an employee's request for leave beyond that offered under the employer's policies.  Similarly, it is vital that all employee leave is accurately documented so that employers are making their decisions based on accurate information.  Therefore, it is important that employers work with counsel to develop leave policies and procedures that comply with all applicable laws by taking into account the specific needs of each employer's business.

Leave policies, however, are only one piece of the overall puzzle for best managing employment-related risks. Check back soon for more discussion of how to mitigate risks and properly plan for other factors relating to employee departures.

About The Author

Jason Palmer | Faruki Attorney