Managing Employee Leaves of Absence Beyond FMLA

Not every leave of absence is covered by the FMLA. Employers regularly encounter situations where an employee needs time off but does not qualify for FMLA leave, has exhausted their FMLA entitlement, or is requesting leave under a different legal framework. Managing these situations requires understanding multiple overlapping laws.

When FMLA Does Not Apply

FMLA leave may not be available because:

• The employer has fewer than 50 employees within 75 miles
• The employee has not worked for the employer for at least 12 months
• The employee has not worked at least 1,250 hours in the preceding 12 months
• The employee has exhausted their 12-week (or 26-week) entitlement
• The reason for leave does not qualify under the FMLA

In these situations, other laws may still require the employer to provide leave or accommodate the employee's need for time off.

ADA Leave as a Reasonable Accommodation

Under the ADA, leave from work may be a reasonable accommodation for a qualified individual with a disability:

• There is no fixed limit on ADA leave; the question is whether the leave is reasonable under the circumstances
• The interactive process should include discussion of the expected duration and whether the employee will be able to return and perform essential functions
• An indefinite leave with no expected return date is generally not considered reasonable
• The employer may require medical documentation supporting the need for leave and the anticipated return date
• ADA leave obligations exist even after FMLA leave has been exhausted

State Leave Laws

Many states provide additional leave protections beyond FMLA:

• State family and medical leave laws: Some states have broader FMLA-like laws that cover smaller employers, require fewer hours of service, or cover additional family members
• Paid family leave: Several states, including California, New York, New Jersey, Washington, Massachusetts, Connecticut, Oregon, Colorado, and Maryland, have enacted paid family and medical leave programs
• Pregnancy and parental leave: Some states require pregnancy-related leave even for employers not covered by FMLA
• Domestic violence leave: Many states require leave for employees who are victims of domestic violence, sexual assault, or stalking
• Military family leave: Some states provide additional leave beyond USERRA and FMLA for military families
• Bone marrow and organ donation leave: Required in several states

Managing Non-FMLA Leave Requests

When an employee requests leave that is not covered by a specific legal mandate:

• Check all potentially applicable laws before denying the request
• Consider whether your own policies, past practices, or collective bargaining agreements provide for the requested leave
• Evaluate whether the ADA requires leave as a reasonable accommodation
• Apply leave policies consistently to avoid claims of discrimination
• Document the request, your analysis, and your decision

Returning Employees from Leave

Managing the return to work after leave requires attention to:

• Fitness-for-duty certifications if required by your policy
• ADA interactive process for any ongoing limitations
• Reinstating the employee to the same or equivalent position (if legally required)
• Updating benefits and payroll
• Communicating with the employee's team about the return without disclosing medical information
• Monitoring for retaliation by supervisors or coworkers