101 West Main Street, Suite 101, Norfolk, VA

When are You Entitled to a Leave of Absence by Law?

If your child has the flu and you need time off from work to care for him, can your employer deny your absence request? Does it make a difference if you have sick or personal leave on the books? Would it make a difference if your child had pneumonia instead of the flu? In addition, earlier this year Congress passed additional leave entitlements for employees in light of the COVID-19 pandemic, but your right to take leave under the new laws only applies in certain circumstances.

These are just a few of the numerous questions that can arise on the topic of leave laws. The answer to many leave law questions often will depend on the size of your employer.

Brief Overview of The Family Medical Leave Act (“FMLA”)

If you work for a company with 50 or more employees, the Family and Medical Leave Act provides you a legal right to take medical leave under for the following reasons.

  • Serious health condition of the employee
  • Serious health condition of the employee’s child, spouse, or parent
  • Birth of a child and to care for the child
  • Placement of a child with the employee for adoption or foster care
  • To care for an injured service member who is the employee’s spouse, parent, child, and relatives for whom the employee is the “next of kin” (up to 26 weeks)

A “serious health condition” under the FMLA is defined as “an illness, injury, impairment, or physical or mental condition” that involves a number of categories. Most common in the workplace, however, is the “continuing treatment” category, which is defined as any of the following:

  • A period of incapacity of more than three consecutive calendar days;
  • One that involves at least two treatments by a healthcare provider within 30 days after the first day of incapacity; or
  • At least one treatment by a healthcare provider within 7 days after the first day of incapacity that results in a regimen of continuing treatment under that provider’s care.

A “period of incapacity” means that the employee or family member is unable to work, attend school, or perform other regular daily activities. Thus, in the above example, if your child is unable to attend school for more than three consecutive days due to an illness, he has met the definition of “a period of incapacity” under the FMLA, and you have the legal right to take leave to care for the child. This is true regardless of whether you have any “sick leave” or other leave on the books.

There are probably hundreds of different scenarios that could trigger your employer’s duty to provide you leave under the FMLA. The United States Department of Labor has extensively codified employer requirements in the U.S. Code of Federal Regulations, and the DOL website includes a helpful Q&A that covers a broad range of leave scenarios.

Leave Under the Americans with Disabilities Act (“ADA”)

If you work for a company with fewer than 50 employees, or if you have already used 12 weeks of FMLA leave, your legal right to take leave is more limited. Under some circumstances, however, your employer may be required to provide you a leave of absence as a reasonable accommodation under the Americans with Disabilities Act.

Unlike the FMLA, there are no guiding regulations for leave under the ADA, and thus employers must rely on court decisions, EEOC interpretive guidance, and the advice of counsel when deciding whether they must grant a leave of absence as an accommodation.

While there are certainly different views on this murky topic, we believe there are two guiding principles for absence requests under the ADA:

  1. The leave of absence must be effective in helping the individual return to work; and
  2. The employee must at least be able to provide good estimate on his date of return.

Thus, the employer almost never has to grant an absence request for an indefinite duration. Generally speaking, the larger the company and the lower down the career ladder the employee occupies, the more likely it is that the company must provide the leave of absence to the employee as a reasonable accommodation. Thus, for example, a restaurant may not be required to grant a 3-week leave of absence to its executive chef under the ADA, even though three weeks is not a particularly long absence. This is because having the executive chef gone for three weeks could cause an undue hardship on the operations of the restaurant. Conversely, an identical request from a worker in a large call center will almost always be reasonable.


The EPSLA provides that an employer must grant all full-time employees up to 80 hours of paid leave, so long as the employee is unable to work or telework due to any one of the following Qualifying Needs:

  • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The employee is experiencing symptoms of COVID-19 and seeking medical diagnosis;
  • The employee is caring for an individual who is subject to an order or advisement as described in (1) or (2) above;
  • The employee is caring for his or her son or daughter because the school or place of care for the son or daughter has been closed or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions; or
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and Secretary of Labor.

Part time employees must be granted the number of hours of paid leave calculated based on the average number of hours worked over a two-week period. The employee’s rate of pay depends on which Qualifying Need the leave is being taken for. For leave taken due to Qualifying Need (1), (2), or (3) above, an employee is entitled to their normal rate of pay. However, in no event will the employee’s pay exceed $511 per week or $5,110 total. For leave taken due to Qualifying Need (4), (5), or (6) above, an employee is entitled to 2/3 of the employee’s regular rate of pay, but in no event more than $200 per day and $2,000 total.

An employer may not force an employee to use accrued paid time off in lieu of the leave granted by the EPSLA, and also may not require an employee to find a replacement before taking leave. 


The EFMLEA requires all employers with fewer than 500 employees to provide up to 12 weeks of leave for any employee who has worked for the employer for at least 30 days if the employee has a qualifying need related to the COVID-19 pandemic. 

A Qualifying Need occurs when the employee is unable to work or telework due to a need to care for his or her son or daughter under the age of 18 if either 

  1. the child’s school or place of care has been closed, or 
  2. the child’s care provider is unavailable, due to a public health emergency.

Once an eligible employee has requested leave under the EFMLEA, the employer is required to grant up to 12 weeks of leave. Only 10 of those weeks, however, must be paid leave. The initial two weeks (10 workdays), can be unpaid; although, the employee may choose to supplement this unpaid leave with any accrued paid time off normally offered by the employer. The remaining 10 weeks of leave must be paid leave in accordance with the pay requirements under the EFMLEA.

Under the statute, an employee is entitled to no less than 2/3 their regular rate of pay for the number of hours per week they are normally scheduled. If an employee works a variable schedule and the employer cannot determine with certainty the number of hours the employee would work, the paid leave is based on the average scheduled hours per day over the previous 6-month period. If the employee has worked fewer than 6 months, the hours will be the number of hours the employee reasonably expected to be scheduled when first hired. In no event will the employer be required to pay the employee more than $200 per day and $10,000 in aggregate for the 10-week paid leave.

Leave laws can be a tricky topic for employees. We hope this post provides you a good starting point in determining whether you may be entitled to a leave of absence under federal law.

Leave a comment