Federal Laws Affecting Workflex Decisions

Both managers and employees should be aware of laws that may require provision of unpaid leave or workflex arrangements to accommodate employees.

Americans with Disabilities Act (ADA)

The basic premise of the federal ADA is to protect qualified individuals with disabilities from discrimination. Under ADA, employers are also required to make reasonable accommodations to disabled individuals unless the employer can demonstrate that doing so would create an undue hardship on the employer’s operations. Per ADA guidelines, reasonable accommodations may include job restructuring, part-time or modified work schedules.

Truly identifying what constitutes a “reasonable accommodation” in any given situation requires that human resource professionals (or whomever handles human resource issues) conduct a case-by-case analysis of the circumstances of the particular situation at issue. That said, the requirements contained within Equal Employment Opportunity Commission (EEOC) regulations and Enforcement Guidance can also be applied more broadly by employers who are looking to create employee-friendly, flexible environments for all employees (not just disabled employees).

Also relevant is Work at Home/TeleWork as a Reasonable Accommodation from the EEOC.

Family and Medical Leave Act (FMLA)

FMLA is a federal law designed to help employees manage their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons.

“Eligible” employees of “covered employers” may take up to 12 workweeks of leave in a 12-month period for the following reasons:

  • to give birth and to care for a newborn;
  • to care for an adopted or foster child, following the child’s placement with the employee;
  • to care for a family member with a serious health condition;
  • to care for an employee’s own serious health condition that makes him or her unable to perform the functions of his or her job; and
  • to respond to a “qualifying exigency” arising when the employee’s spouse, child or parent is a covered member of the military on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.

Further, “eligible” employees may take up to 26 workweeks of leave in a “single 12-month period” to care for a covered service member with a serious injury or illness.

Employees who take leave are entitled to maintain their health benefits while they are on leave, and most employees are entitled to return to the same or equivalent position at the end of the leave.

Generally, an employer is a “covered” employer for FMLA purposes if it employs 50 or more employees within a 75 mile radius for at least 20 workweeks each year.

To be “eligible” to take advantage of the FMLA’s provisions, an employee must:

  1. have been employed for that employer for 12 months or longer;
  2. have worked 1,250 hours during the 12-month period immediately preceding the leave; and
  3. be employed at a worksite with 50 or more employees employed by that “covered employer”within a 75-mile radius of the worksite.

FMLA also includes intermittent leave (leave of less than 12 weeks taken in separate blocks of time) and reduced schedules (schedule that reduces an employee’s usual number of working hours per day or week) for FMLA needs related to serious health conditions or—if the employer agrees—for needs related to the birth, adoption or placement of a child.

The U.S. Department of Labor (DOL) has identified examples of intermittent leave/reduced leave schedule:

  • An employee may take reduced leave on an occasional basis for medical appointments, or several days at a time spread over a period of six months, such as for chemotherapy.
  • A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness.
  • An employee who is recovering from a serious health condition and is not strong enough to work a full time schedule may take reduced leave.

Finally, it is important to note that several states have enacted laws that provide different types and amounts of family and medical leave, in addition to the federal FMLA. Be sure to check the laws in your state.

Fair Labor Standards Act (FLSA)

The federal FLSA sets basic minimum wage and overtime pay standards and regulates the employment of minors. Numerous states also have their own laws in this area that impose additional requirements beyond federal law.

Uniformed Services Employment and Reemployment Rights Act (USERRA)

USERRA prohibits employers from discriminating against individuals because of uniformed service. It also requires employers to reemploy “any person whose absence from a position of employment is necessitated by reason of service in the uniformed services,” provided certain conditions are met.

Patient Protection and Affordable Care Act (PPACA)

The federal PPACA provides, among other things, certain requirements for employers with respect to accommodating nursing mothers in the workforce. The following excerpt from the law (29 U.S.C. 207) illustrates the key requirements:

(r)(1) An employer shall provide—

  • (A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and
  • (B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
  • (r)(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.
  • (r)(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employee’s business.

Employers covered by this law must provide breaks to nursing mothers for the purpose of expressing breast milk. Employers need not compensate employees for this break time. However, while the law does not require these breaks be paid (and specifically states they can be unpaid), most employers likely already provide their employees a few paid breaks throughout a standard shift and must allow employees to use/exhaust these paid breaks for purposes of pumping breast milk.

*Information in this section is from When Work Works, a study funded by the Alfred P. Sloan Foundation.