USA Law and Practice Contributed by: Chuck Baldwin, Ken Siepman, Bonnie Martin and Justin Allen, Ogletree Deakins
1.5 Other Employment Terms Vacation Pay
a modified work schedule, modified duties, transfer to a vacant position or (in some instances) unpaid leave beyond the 12 weeks provided under the FMLA. Similarly, the Pregnant Workers Fairness Act (PWFA) requires an employer with the requisite number of employees to provide a reasonable accommodation to a qualified employee’s or applicant’s known limita - tions related to, affected by or arising from pregnancy, childbirth or related medical conditions, unless said accommodations would impose an undue hardship on the employer. “Related medical conditions” are currently defined broadly. Covered employers are also required under Title VII of the Civil Rights Act to provide accommodations for an employee’s or applicant’s sincerely held religious practice or belief, unless the accommodation would create an undue hardship for the employer. “Undue hardship” in the religious accommodation context is analysed differently than an accommodation under the ADA or the PWFA, and the US Supreme Court recently clarified the term to require a heightened showing by employers. The federal PUMP for Nursing Mothers Act (the “PUMP Act”) also requires most employers to pro - vide a private place to pump at work for a year after a child’s birth, along with a reasonable break time to do so. Confidentiality/Non-Disparagement Traditionally, there have been no limitations on con - fidentiality and non-disparagement requirements. However, there are increasing concerns with regard to such requirements in the employment arena, espe - cially around the extent to which they might prevent disclosure of harassment allegations. A recent ruling by the National Labor Relations Board (NLRB) limits confidentiality and non-disparagement terms – even if agreed – between employers and non-management employees. This is an area that is still evolving under US law. Employee/Employer Liability In general, employees may be held liable for their actions, depending on the nature of the act and the context in which it occurred, though some federal stat -
Vacation and vacation pay are subject to very few reg - ulations and are not required under federal law. How - ever, most employers do provide some paid vacation leave, which is regulated by state and/or local law. State laws will often determine whether an employee is entitled to accrued vacation pay at the conclusion of the employment relationship. Family/Medical Leave The federal Family and Medical Leave Act (FMLA) requires employers of a certain size to provide unpaid leave for maternity, taking care of a medical condi - tion or caring for family members, including covered servicemembers. Paid sick leave is not required by federal law. Under the FMLA, an employee is eligible for unpaid leave if the employee has been employed for at least 12 months by the employer and for at least 1,250 hours of service during the previous 12-month period. An eligible employee is entitled to: • up to 12 weeks of unpaid leave per year; • continuing health insurance benefits during leave (if already provided by the employer); and • job protection (which guarantees an employee can return to the same job or its equivalent). Leave related to a serious health condition may be taken intermittently or on a reduced leave schedule when medically necessary. Some state and local family leave laws provide more generous leave benefits than the FMLA by: • covering smaller employers; • extending the time for unpaid leave; • requiring paid leave in some instances; and • permitting intermittent leave for maternity. Workplace Accommodations Additionally, depending upon the type of employer, the Americans with Disabilities Act (ADA) requires an employer with the requisite number of employ - ees to provide a disabled employee with reasonable accommodations unless said accommodations would impose an undue hardship on the employer. Reason - able accommodations can include a leave of absence,
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