Labor and Employment

Employees Benefits FAQ

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley
Learn employee rights to health insurance, vacation time, and other benefits at work.


Q: Can I be fired while I'm on leave for surgery relating to my disability?


  • A: It depends on the circumstances. There are a few laws that might protect your job in this situation. If your employer has at least 50 employees, it must provide up to 12 weeks of unpaid leave to eligible employees who need time off for their own serious health conditions (among other things). This right comes from the federal Family and Medical Leave Act (FMLA); some states have similar laws, and some apply to smaller employers or offer more time off. If you are taking FMLA leave, you are entitled to be reinstated when your leave is through. Your employer may not fire you because you need leave. However, you may be fired for other reasons. For example, if your employer discovered, while you were on leave, that you were stealing money from the company, it could fire you for that reason. Or, if your entire department is laid off during your leave, your employer can include you in the layoff.

You may also be protected by the Americans with Disabilities Act (ADA). If you have a disability as defined by the law, you have a right to a reasonable accommodation that will allow you to do your job, as long as the accommodation would not create undue hardship for your employer. Courts have found that time off work can be a reasonable accommodation for a disability, unless it creates undue hardship. Among other things, courts consider how much time off the employee needs, how much time off the employer grants in other situations, and how difficult it would be for the employer to accommodate the request for leave.

If you were fired because you needed time off for your disability, you should talk to an employment lawyer. For more information, see Finding a Lawyer for Your Disability Discrimination Case.


Q: Can my employer change our health plan to one that's more expensive or provides less coverage?


  • A: It depends. The Affordable Care Act (Obamacare) requires employers that have at least 50 full-time or full-time equivalent (FTE) employees to offer health insurance. A full-time employee is one who averages at least 30 hours per week. (The full-time equivalent calculation is intended to capture part-time hours: To determine how many FTE employees your employer has, add up all employee hours and divide by 30.)

If your employer is covered by this requirement (called the "employer mandate"), it must offer health insurance to all full-time employees or pay a penalty for failing to do so. The coverage offered must meet certain minimum requirements of affordability and quality. For example, the plan must cover at least 60% of allowable medical costs, and the plan premium for an individual must not exceed 9.5% of the employee's income. For more information on what employer plans must cover, see the Internal Revenue Service's FAQ on the employer mandate.

If your employer is required to comply with the mandate, any changes made to its plan must meet these requirements, for the employer to avoid a hefty penalty. If your employer is too small to be covered by Obamacare, then it is free to change its plan more broadly; in fact, these employers are not legally required to provide healthcare coverage at all.


Q: Does my company have to offer a retirement plan?


  • A: No law requires employers to offer a retirement plan. Although many employers do offer retirement programs, particularly 401(k) accounts, they are under no obligation to do so. If you have an employment contract promising you certain retirement benefits, then your employer must meet its obligations under the agreement. If your employer doesn't hold up its end of the bargain, you can sue for breach of contract.

Many unions have negotiated retirement plans for their members in their collective bargaining agreement (CBA) with the employer. A CBA is a contract that covers the terms and conditions of employment for the employees represented by the union. If you are a union member, talk to your union representative about any promised retirement benefits.


Q: Does my employer have to provide the accommodation my doctor recommends for my disability?


  • A: Not necessarily. If you have a disability that is covered by the Americans with Disabilities Act (ADA), your employer must provide a reasonable accommodation that will allow you to do your job, unless providing it would create an undue hardship for the company. However, this doesn't mean your employer has to provide the exact accommodation you request, or even the accommodation your doctor recommends.

Instead, your employer must work with you, in what the law calls a flexible, interactive process, to come up with an effective accommodation. As long as it provides an accommodation that allows you to do your job (or determined that it would be an undue hardship to accommodate your disability), your employer has met its obligations under the law. So, for example, if your doctor recommends a particular brand of standing desk that costs $2,000, and your employer provides a different brand that works just as well and costs $200, your employer has met its obligations under the law.


Q: If I leave or lose my job, will I lose my health coverage too?


  • A: Not necessarily. The Consolidated Omnibus Budget Reconciliation Act (COBRA) gives certain former employees, as well as their spouses, former spouses, and dependent children, the right to continue their group health coverage for 18 to 36 months after they leave their jobs. COBRA applies to companies with 20 or more employees.

You will have to pay the full cost of your health coverage, including any portion of the premium your employer used to pay when you were employed. Because your employer has likely negotiated a group rate, however, this amount may be less than you would pay on the open market for similar coverage.

You will receive paperwork explaining how to continue your coverage when you leave your job. Among other things, it will explain how much you will have to pay each month for healthcare. Before making a decision about using COBRA, you should research the options available to you through Obamacare, on the health insurance marketplace. There are a variety of plans available, with different providers, different coverage, and different prices.

No matter what you decide, remember that you will have to pay a penalty if you don't have health insurance.


Q: Is my employer required to offer paid vacations or time off for holidays?


  • A: No. Although many employers offer paid time off benefits, there is no law that requires employers to give employees paid vacation days or paid holidays.


Q: Is my employer required to pay out my unused vacation when I quit?


  • A: The laws in your state determine whether your employer has to pay out the vacation time you have accrued when you quit or are fired. In some states, like California, employers always have to pay out unused, accrued vacation time when employment ends. In other states, like New York, whether an employer has to pay out unused, accrued vacation depends on the employer's policy.


Q: Is my employer required to provide health insurance?


  • A: It depends on the size of your employer. Employers that have at least 50 full-time or full-time equivalent employees must offer healthcare coverage or pay a penalty, under the Affordable Care Act (Obamacare). Under the law, full-time employees -- those who work at least 30 hours a week -- must be offered health insurance that meets the law's minimum standards for quality and affordability. (To learn more, see Nolo's Obamacare page.)

If your employer is smaller, it is not legally required to provide health care coverage to employees.


Q: Does an employer have to give employees paid sick leave?


  • A: Although no federal law requires employers to provide paid sick leave, a handful of states do impose this requirement, as do a number of local governments. Currently, employers in California, Connecticut, Massachusetts, Oregon, Vermont, and the District of Columbia must provide paid sick leave to certain employees. Typically, these laws provide that an employee who works a minimum number of hours accrues paid sick leave by working a specified number of hours, up to an annual limit. (Learn more about these laws in this paid sick time chart provided by a Better Balance.)

If your employer is subject to the Family Medical Leave Act (FMLA), you may be eligible for unpaid time off for your own serious health condition (or to care for a family member with a serious health condition). Under the FMLA, employers with at least 50 employees must allow eligible employees to take up to 12 weeks of unpaid leave for these reasons (among others). Learn more about the FMLA at Nolo's page on Taking Family and Medical Leave.


Q: Can my employer count sick time as FMLA leave, even if I don't request it?


  • A: As long as you are taking time off for reasons covered by the Family and Medical Leave Act (FMLA), your employer may count your time off as FMLA leave. And you can understand why your employer would want to: Employees are entitled to 12 weeks of FMLA leave per year for more purposes, and up to 26 weeks of leave per year to care for a family member who was seriously injured while on active military duty. If your employer doesn't count your eligible time off as FMLA leave, it will have to provide more time off later. (You can find lots of articles on FMLA leave at Nolo's page Taking Family and Medical Leave.)


Q: Other employees have health insurance, but I don't. Is this discrimination?


  • A: It depends. It's not illegal to provide insurance only to some classes of employees. For example, it's okay to provide insurance to full-time employees but not to part-time employees. Once the eligible classes are established, though, your employer can't withhold insurance from some members of the class while offering it to others. For example, if your employer provides health insurance to all full-time employees except those who have disabilities, that would be discrimination.

    Also, your employer can require that you follow the rules of the plan, which may require you to fulfill a waiting period or wait for an open enrollment period before you may join the insurance plan.

    If your employer is subject to the Affordable Care Act (Obamacare), it must offer benefits to all employees who work at least 30 hours a week. To learn more, see the federal government's page on the Affordable Care Act.


Q: What is a 401(k) plan?


  • A: A 401(k) is a type of retirement savings plan. It allows employees to contribute part of their wages to an account, typically with pretax dollars. If your contributions to the plan are pretax, you don't pay any tax until you withdraw your contributions upon retirement. Some employers match at least a portion of the money their employees deposit into their 401(k) retirement accounts; others don't.


Q: When does the money in my 401(k) plan become "mine?"


  • A: Employees are immediately "vested" -- that is, the money in the account is theirs -- in all money they deposit into a 401(k) plan. For example, if you defer $100 of each paycheck into your 401(k), that money belongs to you. You will face hefty tax penalties if you withdraw it before retirement (unless a hardship exception applies), but it is yours.

If your employer matches your contributions, it is free to set its own vesting schedule for that money. For example, your employer's policy may provide that employees are 25% vested in employer matching contributions for each year of employment.


Q: Who is covered by the Family Medical Leave Act?


Employees are eligible for FMLA leave if all of the following are true:

  • The employer has at least 50 employees working at the same worksite as the employee who wants leave or within 75 miles of that site.
  • The employee has worked for at least 12 months for the employer.
  • The employees has worked at least 1,250 hours in the 12 months immediately preceding the date when the employee's FMLA leave would start.
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