As the workplace continues to evolve, the dynamics of remote work and the push for return-to-office (RTO) mandates present unique challenges and opportunities for employers. With a growing emphasis on the rights of employees with mental health conditions under the Americans with Disabilities Act, employers must navigate accommodation requests while supporting employee well-being. This blog aims to provide insights into how these issues impact LOA and accommodation policies.

The rise of remote work

The increase in remote work due to COVID-19 has fundamentally changed where and how many people in the United States work. This transition has granted employees greater flexibility and has prompted employers to adapt their leave of absence (LOA) and accommodation policies. As remote work blurs the lines between personal and professional boundaries, employers must recognize that remote employees may utilize LOA differently than in-office staff, often remaining more connected to their work. Addressing these challenges involves:

1. Supportive culture: Employers should foster open communication about the importance of taking time off and regularly check in with employees to assess their well-being. This proactive approach creates a culture that prioritizes mental health and encourages appropriate use of LOA.
2. Stay informed: Employers must stay updated on federal, state, and local regulations regarding leave benefits. With numerous jurisdictions implementing paid family and medical leave (PFML) and paid sick leave requirements, it is crucial for employers to review their policies regularly to ensure alignment with legal obligations. This ensures alignment with legal obligations, allowing effective support of employee needs.
3. Location impact: The location of remote work also complicates compliance with leave benefits. Different jurisdictions have varying requirements for Paid Family and Medical Leave (PFML) and paid sick leave, posing challenges for employers as they navigate these nuances.

The Shift Back to In-Office Work

Many companies have announced RTO mandates, citing reasons like collaboration and company culture. However, there are concerns about how RTO will affect employee morale and productivity, particularly those who have adapted to remote work.

With the implementation of Return to Office (RTO) mandates, many employers are experiencing a rise in employee leave of absence (LOA) and accommodation requests. The transition to remote work alleviated several issues that typically lead to such requests. As employees adjust to being back in the office, this may trigger requests for continued remote work, often linked to stress or mental health concerns. Employers should understand the underlying reasons for these accommodation requests, which may extend beyond the desire for flexibility or to avoid commuting.

Evaluating office conditions—such as parking availability and workspace privacy—can help identify potential issues affecting employee comfort. For employers promoting RTO for collaboration and culture, investing in office spaces that meet employee needs is essential. While standardizing processes to bring employees back to the office can pose challenges, employers must thoughtfully address accommodation requests. These requests should be consistently reviewed following an established process outlined in company policies or handbooks.

Seeking employee feedback on LOA and leave offerings is vital to understanding their needs and experiences. Training managers to communicate effectively about these benefits and recognize indirect signs or requests for LOA or accommodations can further support employees during this transition.

 

Remote work as a valid accommodation request

Employers must recognize the compliance implications of remote work as an accommodation request and should have a plan to address these requests.

With a notable rise in requests for remote work accommodations—some linked to specific return-to-office mandates and others related to general mental health—employers must engage in this interactive process regardless of the feasibility of remote work for individuals. The ADA requires an interactive process to explore all potential accommodations, not just the option to work from home (WFH). This process may lead to the identification of alternatives, such as providing a private workspace or additional breaks, which could alleviate some of the stress or other limitations that prompted the accommodation request.

While allowing remote work may challenge employers with return-to-office (RTO) mandates, the ADA and relevant state and local laws require accommodations, including remote work, for qualified individuals with disabilities when necessary. Employers must provide these accommodations unless doing so would cause undue hardship, which may involve modifying existing policies or exceptions to RTO mandates.

 

Addressing mental health needs

Employers should be mindful of the increase in accommodation requests related to mental health as employees adjust to returning to in-person work. Some respond by offering additional PTO or specific mental health days, while others promote existing benefits such as counseling services or wellness programs to support employees during this transition.

In many situations, the employer may request medical documentation to better understand the nature of the request, assist with identifying specific restrictions or limitations, and identify potential accommodations.

Guidance from the Equal Employment Opportunity Commission (EEOC)

The EEOC provided guidance for employers on WFH or telework more than twenty years ago, which remains relevant today. Employers must analyze each remote work request case by case through an interactive process. They need to determine whether in-office work is truly essential for the job rather than relying on the job description or return-to-office mandates to support their claims.

Several factors can be considered to assess whether in-office work is essential: the reason for the position’s existence, the availability of other employees to perform the function, and the required level of expertise or skill. Additional considerations include the employer’s judgment, the written job description, and the actual work experiences of current or past employees in that role.

It’s important to note that allowing remote work in the past does not compel employers to offer it permanently. During the COVID-19 pandemic, many employers adjusted their policies to provide more remote work flexibility, sometimes as a temporary accommodation. Therefore, new requests can be evaluated individually, and requirements for in-office work may vary under current circumstances compared to earlier ones.

The EEOC has indicated that prior approvals for remote work during the pandemic may influence decisions about new requests. However, employers must still demonstrate that in-office work is essential, even if requirements have changed since the pandemic.

 

Evaluating employee work-from-home requests

Employers should carefully consider employee requests to WFH while also exploring alternative accommodations that enable effective in-office work. As part of that interactive process, the employer may request medical certification to support the request, ask clarifying questions about the employee’s restrictions and limitations, and request information about how being in the office would impact their ability to perform their duties.

To ensure a fair and objective accommodation review process, employers can take the following steps:

• Review accommodation requests on a case-by-case basis: Each request should involve reassessing the position’s essential functions, engaging in open discussions with employees to understand their restrictions and limitations, and identifying potential accommodations.
• Review policies regularly: Regularly reviewing and updating accommodation policies can help ensure compliance and address the evolving needs of the workforce.
• Establish and document a standard process: Creating a standardized review process can help set expectations for employees regarding what to expect and the timeline/duration and can provide a framework for the persons responsible for approving or denying the accommodation.
• Train managers: Providing training for managers on handling accommodation requests and understanding employee rights can foster a supportive workplace environment.

By implementing these strategies, employers can create a more effective and responsive system for managing accommodation requests.

 

Conclusion

The transition back to in-office work amid the evolving landscape of remote work presents both challenges and opportunities for employers. Organizations implementing RTO mandates must be prepared to navigate an increase in LOA and accommodation requests, particularly mental health-related ones.

Employers should prioritize identifying opportunities to support their employees during the transition, reviewing and updating any applicable LOA or accommodation policies, training managers to support employees and recognize requests for LOA or accommodation, and ensuring a consistent process to respond to requests to WFH.  By fostering a supportive environment and understanding the nuances of compliance, employers can provide a smoother transition for their workforce while maintaining legal obligations and promoting employee well-being.

Although it is generally not required, most employers offer their employees some form of vacation or Paid Time Off (PTO). This is typically a form of wages for services performed based on tenure or hours worked. However, a recent trend has seen some employers offering a different type of time off that is not accrued and not considered wages in most circumstances. Instead, it allows employees to take as much time off as needed – unlimited PTO, flexible time off, discretionary time off, unlimited vacation, or a variety of other names to align with a specific company’s culture.

Unlimited PTO is a flexible time off policy that does not utilize accruals or balances but allows employees to take as much time off as they need for personal, vacation, or any other reason. It aims to promote work-life balance while also reducing the administrative burden of tracking accrued PTO or vacation policies.

More and more companies are shifting from traditional vacation or PTO plans to unlimited PTO in an effort to offer more flexible time off benefits to their employees. The 2025 Marsh McLennan Agency Leave of Absence and Time Away Survey indicates that nearly 34% of employers now provide some form of unlimited PTO, an increase of 7% from the prior survey results. While this type of policy appeals to employees who want to find more work-life balance, transitioning from traditional PTO or vacation to unlimited PTO involves several compliance considerations for employers.

Benefits of unlimited PTO for the employee

Unlimited PTO offers significant flexibility for employees, allowing them to take time off as needed without the constraints of accrued vacation or PTO hours. This flexibility supports a healthier work-life balance and empowers employees to manage their time according to personal and professional needs. Employers often observe that employees feel trusted to complete their work to align with deadlines and manage their work-life balance via appropriate use of their time off. As a result, employees tend to be more engaged and productive. This increased satisfaction can lead to a more positive workplace culture.

There can be challenges for employees who struggle with the flexibility and utilize less time off than they would under a traditional PTO or vacation plan. Still, employers can take steps to help employees feel comfortable with unlimited PTO. This typically involves setting a minimum usage requirement, encouraging employees not taking time off to do so, and ensuring that leadership and managers set an example by utilizing their own time off.

 

Benefits of unlimited PTO for the employer

From the employer’s perspective, implementing unlimited PTO can substantially save administrative time and resources. Employers can focus on more strategic initiatives by eliminating the need to track accruals, usage, and balances rather than managing complex PTO and vacation systems and processes. In addition, reducing liabilities associated with accrued PTO and vacation balances can result in significant cost savings. In particular, when employees separate from the company because there is no payout with an unlimited PTO program, which many states require for unused accrued PTO/vacation.

Compliance considerations

After an employer decides to offer unlimited PTO, they will have a few compliance considerations when it comes to transitioning from a more traditional PTO or vacation plan: developing a policy that outlines the parameters of their new program and creating a robust change-management plan to communicate the new program to all impacted employees effectively.

 

Developing a policy that outlines the parameters of their new program

From a compliance perspective, two of the most critical aspects of the transition to unlimited PTO are managing each employee’s existing PTO or vacation balance and complying with any applicable state or local accrued sick leave requirements. A few states treat accrued but unused PTO and vacation as wages, meaning that employers are prohibited from utilizing any process or policy in which an employee is forced to forfeit their earned but unused PTO or vacation. The employer cannot simply zero out or eliminate those existing balances in those locations. Although this might be technically compliant where forfeiture of PTO and vacation is allowed, it would almost certainly be poorly received by employees and potentially harm the employer-employee relationship. Therefore, treating all employees’ PTO and vacation balances the same, regardless of employee work location, is recommended.

Employers have a few options, each with their pros and cons that must be weighed as part of the decision:

1. Payout existing PTO balances: The employer could payout all existing PTO balances as of the effective date of the unlimited PTO program. This brings a significant one-time expense for the employer but also has its positives. It is easy to understand for employees, removes any administration of prior PTO/balances, and eliminates any ongoing liability.
2. Freeze and maintain existing PTO balances: The employer could freeze and maintain existing PTO balances as of the effective date of the unlimited PTO program. In some cases, the employer may allow the use of the frozen PTO and vacation balances with very limited use, such as when unlimited PTO is unavailable or only as required at termination. This method avoids the immediate payout costs but requires the employer to carry the liability forward, potentially indefinitely. It also requires employees to maintain balances and usage in their tracking system(s). Plus, some of the PTO hours will be paid out at a higher rate to any employees who receive a salary or wage increase before the PTO is paid out.
3. Incorporate a transition period for utilization: The employer could define a transition period that allows or requires employees to utilize existing PTO and vacation before accessing unlimited PTO. This is typically done in one of two ways:
   1. First, create a defined term for the transition, in which all absences will draw from the existing PTO and vacation balances until they are depleted, then pay out any remainder upon the official transition. This requires unlimited PTO to be launched at some date in the future, allowing more PTO and vacation to be used. However, it does require administration during that time and ongoing for any employee who slowly draws down their PTO and vacation balance due to low utilization.
   2. Second, the use of PTO and vacation is required on an ongoing basis, even after the launch of unlimited PTO, with all existing PTO and vacation used before unlimited PTO or existing PTO and vacation being used at the start of any absence. For example, each absence’s first three days (or 24 hours) are considered PTO and vacation, and the remainder is unlimited PTO. This method reduces or eliminates many positives of unlimited PTO because it requires continued administration, avoids a one-time cost, and reduces liabilities over time.

Employers will want to balance their intended goals of launching unlimited PTO with the negative aspects of each approach to determine which method makes the most sense.

Employers should also double (or triple!) check any accrued state and local sick leave requirements that may be impacted by the transition to unlimited PTO. Many employers utilize their PTO policy to comply with state and local sick leave requirements. Utilizing unlimited PTO for compliance may add another complexity regarding specific requirements. For example, when state and local sick leave regulations require that sick leave accruals, usage, and balances are displayed on each employee’s paystub, employers need to understand how to meet that requirement with unlimited PTO. Employers must research and check with their compliance or legal team to understand any potential challenges or conflicts between state/local sick leave requirements and unlimited PTO.

 

Creating a robust change-management plan to communicate effectively

After considering the compliance challenges, employers should shift their focus to documentation and communication. Drafting an unlimited PTO policy can be challenging. Employers should establish:

• Clear requirements around which employees are eligible
• When unlimited PTO can be used, including whether sick leave reasons are covered, excluded, and covered under a separate policy
• How unlimited PTO will interact with other benefits, such as short-term disability or statutory paid leaves, such as paid family and medical leave
• Plus a variety of other details, such as the notice and approval process, any minimums or restrictions on use, and more.

After the policy is drafted and a transition date set, employers should work backward from that date to communicate the changes to impacted employees. Those communications should focus on the employees’ perspective and attempt to answer any potential questions employees may have. This will likely include providing employees with a clear timeline, a summary of the new policy, who is impacted, details about what happens to existing PTO and vacation, and who employees can contact with questions.

Employer checklist: Transitioning to unlimited PTO

• Analyze the company’s employee population to assess whether unlimited PTO aligns with company goals and culture for all or a subset of employees.
• Draft an unlimited PTO policy.
  • Leverage your broker and consultant partners, like Marsh McLennan Agency Absence, Disability, & Life Practice, who provide transition support and resources to help draft your policy.
• Assess potential impacts, including:
  • Employees’ existing PTO and vacation balances
  • How unlimited PTO will interact or coordinate with accrued paid sick leave, leave of absence, paid statutory benefits, short-term disability, and any other existing programs related to time away from work
  • Watch for potential compliance requirements and impacts
• Engage with Legal to review the policy and assess potential impacts that might cause compliance risks or challenges.
• Develop a transition timeline and plan.
  • Work backward from the proposed effective date of the new Unlimited PTO policy to establish key dates and deliverables.
• Engage with all impacted groups to understand potential impacts from all perspectives, including payroll, timekeeping, human resources information system (HRIS), human resources, supervisors/managers, benefits, leave of absence administration (i.e., internal team or third-party administration), and any other groups that may be impacted.
  • Identify any training opportunities or resources needed from each group.
• Develop a robust employee communication plan.
  • Explain why the transition is happening, which will help employees understand and accept the new program. Highlight that unlimited PTO is based on trust and allows employees to balance completing their work and taking time off.
  • Provide details and examples of what will happen to an employee’s existing PTO balance during the transition to unlimited PTO.
  • Emphasize that while the plan may be called ‘unlimited PTO,’ there is still a requirement for supervisor or manager approval.
  • Provide information about where and how to enter PTO requests to emphasize that time must still be entered and tracked.
• Create supervisor and manager training materials and resources.
  • Consider developing a standard operating procedure (SOP) or guide to assist supervisors and managers with the unlimited PTO process. This should include the approval and denial criteria, focusing on business needs and employee productivity, and to avoid the Supervisor/Manager tracking individual employee usage that might be used as a factor in approval/denial decisions.

How can Marsh McLennan Agency’s Absence, Disability, & Life Practice help?

Transitioning to an unlimited Paid Time Off (PTO) program can provide greater flexibility and enhance employee satisfaction. However, it is essential to plan carefully and communicate clearly to ensure compliance and effectiveness. If you would like assistance with the transition process, reviewing and editing policies, or launching a new unlimited PTO program, please contact Marsh McLennan Agency.

In the world of workplace accommodations, an employer must track many laws and regulations to ensure that they are compliant and provide employees with applicable protections, rights, and benefits. The primary law that drives these requirements for employers is the Americans with Disabilities Act Amendments Act (ADAAA, or ADA for short).

The ADA requires a covered employer to provide a reasonable accommodation to a qualified individual with a disability, meaning they must make adjustments to the job or work environment to allow the employee to perform their essential functions effectively unless doing so would cause undue hardship for the employer.

Employers must also be aware of the much more recent Pregnant Workers Fairness Act (PWFA), which has some of the same foundations as the ADA. The PWFA’s central requirement is that “covered employers must provide reasonable accommodations to qualified employees, which is anyone with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions unless the accommodation will cause the employer an undue hardship.” But, beware of the details – there is some significant variation between the ADA and PWFA, as outlined in a recent Connecting with Compliance post: “Comparing Accommodation Rights: PWFA and ADA.”

What steps can an employer take to ensure compliance?

The first step, which is consistently repeated in blog posts and webinars, is to ensure that all people managers can recognize and respond appropriately when an employee requests accommodation. Of course, there are other points in the accommodations process where an employer has the potential to drop the ball, so every employer should ensure they have a robust accommodations policy and process in place. Failure to recognize these requests and/or failure to follow (and document) a consistent process for providing reasonable accommodations can result in complaints, charges, and lawsuits.

 

The impact of not being compliant

The U.S. Equal Employment Opportunity Commission (EEOC) shared in October 2024 that it filed 110 lawsuits for the year ending September 30, 2024, focused on ensuring that workplaces are fair, safe, and inclusive. The EEOC views litigation (i.e., filing lawsuits against employers) as a strategic tool that can push more employers toward compliance with these requirements.

Of those 110 cases, 48 involved potential violations of the Americans with Disabilities Act (ADA), and another five were related to the Pregnant Workers Fairness Act (PWFA). It appears that the PWFA will remain a focus for the EEOC, so employers must focus on the nuanced requirements when it comes to requests for accommodation from pregnant employees. Employers must also be aware of the broad definition of “pregnancy-related” under the PWFA, as evidenced here when an employer failed to accommodate an employee who requested to recover and grieve following a stillbirth.

With nearly half of those 110 cases focused on ADA violations, employers must also remain diligent regarding all accommodation requests. Failure at any point in the process can lead to charges or litigation. Even when the request is properly recognized, and all sides agree on an accommodation, the employer must ensure that it is implemented and effective.

Employers must establish and adhere to a clear accommodations process to effectively mitigate the risk of EEOC charges related to the ADA and PWFA. By doing so, they not only reduce the likelihood of potential EEOC charges and/or litigation from employees but also foster a more inclusive work environment. This proactive approach demonstrates a commitment to supporting all employees, which is essential for maintaining a positive workplace culture.

How can Marsh McLennan Agency’s Absence, Disability, & Life Practice help?

Understanding and implementing effective accommodation strategies is crucial for ensuring compliance and fostering an inclusive workplace. If you need assistance navigating your accommodation requirements, developing a comprehensive ADA policy, or reviewing your current processes, Marsh McLennan Agency is here to support you in creating an environment that values every employee’s needs and promotes a culture of accessibility within your organization.

Let’s start by defining each:

PWFA: Requires covered employers to provide reasonable accommodations for an applicant’s or employee’s known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation will cause the employer an undue hardship.

ADA: Prohibits discrimination against individuals with disabilities in various areas of life. Beyond that, Title I of the ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities, except when such accommodation would cause an undue hardship.

There are a few similarities between the two laws:

• • both programs require employers with 15 or more employees to adhere to these programs
  • both require employers to provide reasonable accommodations in certain situations
  • both advise that each situation be looked at on a case-by-case basis. The employer needs to analyze the individual circumstances of the request to determine whether and how to provide accommodation(s).
  • both, and specifically under the PWFA, state the employer should consider other reasonable accommodation options before exploring leave of absence as an accommodation
  • both state that leave of absence may be a reasonable accommodation, including reduced schedule or intermittent leave.
  • both define “undue hardship” relatively the same

In many cases, a pregnant applicant or employee can be covered by the ADA and PWFA, but that is not always the case. Which brings us to …

 

Key differences between the PWFA and ADA:

1. Who is eligible?

PWFA: The PWFA protects all employees (or applicants) who work for a covered employer and have known limitations related to pregnancy, childbirth, or related medical conditions.

ADA: The ADA protects qualified individuals with disabilities, which is any person who has a physical or mental impairment that substantially limits major life activities, has a record of such an impairment, or is regarded as having such an impairment.

 

2. Should the eligible employee be able to handle their essential job function for an accommodation to be instituted?

PWFA: Not necessarily. In limited situations under the PWFA, an employee may be eligible for accommodation even when they are unable to perform the essential functions. There are three requirements in this situation:

a. inability to perform the essential functions must be temporary

b. essential functions can be performed in the near future

c. the inability to perform the essential functions can be reasonably accommodated

The PWFA provides additional information and definitions regarding those terms. For example, temporary is defined as “lasting for a limited time, not permanent,” and the near future refers to a time period within 40 weeks, the typical duration of a pregnancy.

ADA: Yes. Under the ADA, the employee must be able to perform the essential functions of the position. An employer is not required to eliminate or remove essential functions as part of the accommodation.

 

3. What types of medical conditions or disabilities must be accommodated?

PWFA: The PWFA protects those with known limitations related to pregnancy, childbirth, or related medical conditions. The condition does not need to rise to the level of disability. Instead, pregnancy itself is covered. These terms are broadly defined in the PWFA and may include infertility and fertility treatment, use of contraception, termination of pregnancy, and many other pregnancy-related issues. PWFA also covers several conditions that are not unique to pregnancy or childbirth, such as migraine headaches, nausea or vomiting, and others.

ADA: The ADA covers individuals with disabilities – a significantly broader category than PWFA but more limited in scope when it comes to pregnancy and pregnancy-related conditions. Under the ADA, pregnancy itself is not considered a disability and is not covered unless there are additional related conditions that rise to the level of a disability.

 

4. Can an employer require medical documentation before providing an accommodation?

PWFA: The PWFA proposes that there are many situations in which an employer should review and provide an accommodation without requiring medical documentation. Thus, an employer may only require certification if it is reasonable for the employer to determine whether to grant the accommodation. The PWFA also introduces the concept of the employee’s self-confirmation. This means the employee’s statement about limitations and accommodations is all that is required in some cases, and requesting documentation is not reasonable. It would also not be reasonable if the limitation and need for accommodation is obvious, which could be:

• • • when the employee has provided sufficient information,
    • when the employee is pregnant and requests any of the four common types (see below),
    • or when the limitation is lactation or pumping.

ADA: Under the ADA, employers may only ask for medical certification when the disability and/or need for accommodation is not known or obvious. If the disability and need for accommodation are obvious, such that the employer knows of the disability without the employee mentioning it or asking for an accommodation, an employer should move to the next step of identifying potential accommodation(s).

 

5. What types of accommodations must be provided?

PWFA: Each situation must be reviewed on a case-by-case basis, similar to the ADA, but four requests should be processed quickly without medical documentation and with a limited interactive process:

• • • carrying and drinking water
    • additional restroom breaks
    • sitting or standing changes
    • breaks to eat or drink, as needed

In addition, the PWFA provides a non-exhaustive list of potential accommodations, including job restructuring, modified schedules, more frequent breaks, permitting the use of paid leave or providing unpaid leave, light duty, telework, and more.

It is also important to note that the PWFA will generally cover requests related to lactation and pumping, which are not typically covered under the ADA.

ADA: The EEOC has provided a similar list under the ADA.

 

6. Can the employer provide alternative options for the accommodation without the employee’s consent?

PWFA: No. The PWFA does not allow an employer to choose an accommodation but requires collaboration through an interactive process.
ADA: Yes. The ADA also typically uses the interactive process but allows the employer to choose to provide an alternative accommodation rather than the employee’s requested accommodation as long as it is effective.

 

7. Can the employer require leave as an accommodation?

PWFA: The PWFA prohibits an employer from requiring an employee to take a leave of absence as an accommodation if the employee is seeking an at-work accommodation (and such accommodation is reasonable and available).
ADA: This is a best practice under ADA but not a requirement.

As employers continue to adjust processes to align with PWFA requirements, a couple of things that will help get you started on being compliant prior to the effective date of the final regulation, June 18, 2024:

• • Review your existing accommodations policy (and related process control documents) to ensure compliance with PWFA, or consider drafting a separate PWFA policy.
  • Train your people managers and HR to ensure they are aware of the broadened requirements under PWFA so that they understand how to recognize a request for accommodation under the PWFA.

For additional information, check out the EEOC’s summary of PWFA. The EEOC previously released the proposed PWFA regulations and published the final regulations on April 19. They will go into effect 60 days later, on June 18, 2024.

Employers should also be aware of many existing laws that protect pregnant employees, including the ADA, The Providing Urgent Maternal Protections for Nursing Mothers Act (the PUMP Act), and various state/local laws that require accommodation or required an employer to provide other protections and benefits.

 

This information is provided for informational purposes and should not be considered legal advice.