November 2025 Volume 7

OPERATIONS & MANAGEMENT

MY EMPLOYEE SAYS SHE NEEDS TIME OFF Can’t I Just Follow My Leave Policy? By Johanna Fabrizio Parker

E mployee requests for time off present multiple challenges for employers. Unfortunately, it’s not so simple as: we allow for 10 days of vacation or PTO, and beyond that, you’re just out of luck (and/or subject to discipline if you do not show up for work). Instead, supervisors and others receiving these requests have to understand any possible issues behind them. Why Is The Employee Requesting Time Off? Many companies use a PTO system – meaning that an employee can take their paid time off for any reason and does not have to share the reason. In these systems, it’s very common for the employee not to provide a reason, and there is no reason to ask for one. But what if you do know? For example, what if the employee indicates something that could be considered a “serious health condition” under the Family and Medical Leave Act (FMLA)? A serious health condition is any illness, injury, impairment, physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. Or, what if the employee indicates that he needs to care for his spouse, child, or parent with a serious health condition? In each of these cases, the employer is on notice that FMLA could be applicable, and needs to provide the FMLA paperwork for the employee to complete. Now, it may be that the condition/event actually turns out not to be covered by the FMLA, or it may be that the employee is not eligible for FMLA, but best practice is still to provide the paperwork so that the actual determination can be made. And, if the time off ultimately is FMLA-protected, the employer cannot discipline the employee in any way, .e.g., assess attendance points, for taking it. The Employee Has Exhausted All FMLA Leave, So That’s It, Right? Not necessarily. If the employee needs additional leave to accommodate a disability, then the employer may have to consider extending the leave – even beyond any FMLA period. Under the Americans with Disabilities Act (ADA), “disability” is broadly defined. It is a physical or mental impairment that substantially limits one or more major life activities. And “substantially limits” also is defined broadly. In short, if you have an employee with a physical condition where a period of leave could allow them to return to work, it is something to consider. So, how much leave? Unfortunately, there is no specific answer there. It really does depend on your own situation, and what may be considered an “undue hardship” for the employer. An undue hardship can be a financial difficulty, as well as changes that are unduly extensive or disruptive. An undue hardship for a smaller employer will look very different from an undue hardship for a larger employer. Another consideration is whether the leave is for some defined period of time, versus indefinite. While the EEOC does not provide specific timing guidelines as to this topic, it does say: “indefinite leave -- meaning that an employee cannot say

whether or when she will be able to return to work at all - will constitute an undue hardship, and so does not have to be provided as a reasonable accommodation.” 1 Employers also should be aware of the Pregnant Workers Fairness Act (PWFA), which requires employers to provide reasonable accommodations for an employee’s known limitations related to pregnancy, childbirth, and related medical conditions. So, first, it’s not just about the period of pregnancy. And, second, how an employer has to accommodate here is broader than under the ADA. It can include schedule changes, remote work, temporary reassignment, and even temporary suspension of an essential job function. What If It’s Not About Any Of These Topics? There are other types of protected leave, and these vary state by state. • Most (if not all) states protect employees who need leave for jury duty, or to be a witness in a judicial proceeding. Some states provide time off to serve as an election official, and at least one state allows for time off for an employee to register to vote. • Many states protect employees who need leave to be an emergency responder or to serve on the state’s civil air patrol. (This is separate from general military leave.) • Some states provide protected leave for crime or domestic violence victims. • Some states provide leave for child-care or school activities, e.g., parent-teacher conferences. • A few states provide leave for employees to be organ or blood donors. Most of these leave provisions only require unpaid leave, though employers should definitely review and confirm as paid leave can be required, e.g., jury duty in some states and/or for some period of time. As always, this is provided for educational purposes and is not legal advice. I do hope it helps you and your teams to spot potential issues, and I always encourage you to seek legal advice as to any particular issue/leave request. Reference: 1. www.eeoc.gov/laws/guidance/employer-provided-leave-and americans-disabilities-act (last visited 10/27/25). Johanna Fabrizio Parker Partner, Labor & Employment Benesch Friedlander Coplan & Aronoff LLP Email: JParker@beneschlaw.com Phone: 216-363-4585

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