Written by Ashley Felton and Katarina Stockton From Michael Best & Friedrich LLP on Oct 20, 2025
On Wednesday, October 8, Ashley Felton and Katarina Stockton hosted a complimentary webinar titled “Leave No Doubt: Navigating Evolving Leave Laws.” Together, they broke down the latest updates to the FMLA, ADA, and PWFA, as well as emerging legal and regulatory trends affecting leave compliance across jurisdictions.
The following information provided is for general informational purposes only and is not intended to be legal advice. While we strive to ensure the accuracy and timeliness of the information, laws and regulations are subject to change. We recommend contacting your Michael Best attorney for advice specific to your situation.
In 2024, 62% of HR managers saw an uptick in leave requests since 2023. Of those who responded to the survey, 75% saw an increase of 20% or more. For employers who have staff across multiple states, leave laws can quickly become complex as you layer federal laws with state and local laws. Understanding leave laws and their impact on your business and employees’ lives is crucial to ensuring compliance while meeting the needs of those individuals who work for you.
The Family and Medical Leave Act provides employees with job-protected, unpaid leave for qualified medical and family reasons. Essentially, it allows for 12 weeks of unpaid leave for events such as childbirth, adoption, serious health conditions, and other contingencies. There is also a provision providing 26 weeks of military caregiver leave. Employers are required to maintain health coverage during leave.
- This applies only to employees of qualified employers. To qualify:
- The employer must have at least 50 employees within a 75-mile radius.
- The employee must have worked at least 1250 hours over the past year.
- If the employee has no physical job site, the headcount is based on their home base, the site to which they report, or the site from which their work is assigned.
Employees do have some options to receive pay while on FMLA:
- Employees are entitled to return to the same or equivalent job after the conclusion of the leave period.
- The employee must promptly return to work at the conclusion of leave.
- The employer may request certification of need for the leave from the health care provider.
- Main takeaway: Employers can enforce the terms of approved leave. If the employee goes outside those boundaries and does not provide updated documentation, disciplinary action is allowed.
- Employers can require employees to submit to a fitness-for-duty test before re-employment.
Information relating to medical certifications, recertifications, or medical histories of employees or employees’ family members created for the purposes of FMLA must be maintained as confidential medical records in separate files/records from the usual personnel files.
The following represent situations where an employee would request FMLA, and/or when you should offer them FMLA.
- The employee requests time off for surgery, pregnancy, birth of a child, adoption, or treatment (e.g., chemotherapy or physical therapy)
- The employee requests time off to care for a sick child, parent, or spouse.
- The employee misses work sporadically due to a chronic condition (e.g., migraines or asthma)
- The employee requests leave for reasons related to a family service member.
The Americans with Disabilities Act prohibits discrimination against qualified individuals with disabilities in employment. Related to leave, we often see ADA used if the employee:
- If they need more than the 12 weeks provided under FMLA
- Employers must provide a reasonable accommodation unless doing so would create an undue hardship on the employer. The EEOC has information on enforcement of leave as reasonable accommodation.
The following factors are relevant to determining undue hardship:
- The overall size of the covered entity and the number of employees employed
Tip: Ensure all your job descriptions are clearly written and up to date.
- Has a physical or mental impairment that substantially limits one or more major life activities (eating, sleeping, movement, working, learning, sensory functions, cognitive functions)
- Has a history or record of such impairment (e.g., cancer in remission)
- Employees are entitled to return to their original position or another equivalent position for which they are qualified.
The Pregnant Workers Fairness Act requires certain employers to provide reasonable accommodations to qualified employees for known limitations related to pregnancy, childbirth, or related medical conditions, unless it would cause undue hardship.
- Under the PWFA, employers must engage in an interactive process to determine what reasonable accommodations are available for employees with pregnancy-related limitations.
- The request does not need to be in writing or include special words.
- Leave is a permitted accommodation under the PWFA, but employees cannot be required to take leave if another accommodation is reasonable and would not cause undue hardship.
Tip: Take requests seriously, engage in good faith discussions, and avoid defaulting to leave when it is possible for other accommodations to be made for the employee.
PWFA Leave as an Accommodation
Tip: Include specific, reasonable accommodation policy pertaining to pregnancy in your handbook, so you comply with the PWFA.
- Performance should be managed without consideration of leave or medical conditions.
- Adverse actions that would have occurred regardless of leave may be taken
- When you hire in a new jurisdiction, you need to check on things like state paid sick leave laws, state nuances on PTO plans, state family medical leave laws or insurance plans, etc.
- State laws will most likely kick in before federal rules do. The threshold is lower, meaning that different nuances and requirements for the employer are usually a bit more burdensome.
- North Carolina requires this unless there is a written policy that states otherwise.
- Alaska, Arizona, California, Colorado, Connecticut, DC, Georgia, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, Washington
It is unclear if unlimited PTO is paid out at termination (when it is required) or covers mandated sick leave.
Tip: If your state requires paid sick leave, have a separate bucket of time for paid sick leave and then have your unlimited PTO or standard PTO plans as a separate thing.
Employees’ Changing Expectations
Coming out of COVID, unlimited PTO plans were popping up everywhere. Part of this was driven by a loss of HR teams, the shuffle of the workforce, and not having enough administrative capacity to count accrued leave and banks of leave.
This has started to take a shift, especially now that we’re not quite sure if it is going to check the box for state paid sick leave.
- It is disputed whether employees end up taking more or less time off.
- It is unclear if it is paid out upon termination.
- It is unclear if it can double as mandated sick leave.
- PTO is an expected benefit of applicants and can act as a powerful recruiting tool.
Tip: When building your paid leave plans, consider what is best to administer, what is easiest to track, and how you can reduce administrative headaches.
The following examples of leave laws will have requirements that vary from state to state. When you craft and update your handbooks, it is important to make sure you address these leave laws as they apply to your staff and the locations where they work.
Challenges for Multi-State Employers
- Multi-state employers may face difficulty adopting one common leave policy due to varying state leave laws.
- States may impose more onerous standards than those contained in the FMLA, ADA, PWFA, and USERRA.
- Certain states treat paid leave as a form of wage earned, requiring unused but accrued leave days to be paid out.
- Local leave laws add another layer to the difficulty employers face in adopting compliant policies.
- Over 20 cities and counties require paid sick leave, but they often face state pushback.
Leave Law News
- Rhode Island became the first state to require workplace accommodations for employees experiencing menopause.
- Illinois will require leave for employees during the hospitalization of a newborn in a NICU, regardless of length of service.
Tip: Review your employee handbooks once a year to ensure you are compliant with federal and state laws.
