Overview: Employers have an obligation to comply with various federal, state and local leaves of absence laws. Many employers go beyond the law and voluntarily offer leaves (such as bereavement, pandemic leave or paid sick leave). These additional leaves may be effective for staying competitive in attracting new talent, increasing employee morale or retaining employees. Multistate employers may offer leaves that are not legally required in order to create uniformity (provide all employees with the same benefits) and for administrative and morale reasons.
Employers need to be careful that their leave policies comply with the law that creates the greatest degree of protection for employees.
Employers must always comply with the federal Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA) and Title VII when it handles leave requests and/or creates leave policies. Employers must also always check their state and/or local law when managing leaves of absence. Many state laws differ from federal law (e.g. states may offer paid leave, or states may expand the scope of leave to care for family members that federal law does not cover such as domestic and/or same-sex partners) - and, many states differ from one another. For example, some states protect an employee's right to accept another employment opportunity while on approved leave (moonlighting) while other states specify that an employer can prohibit outside employment that creates a conflict of interest.
Employers must always be aware of the risk of legal claims for interference, retaliation and discrimination when managing leaves. The best way for an employer to reduce risk is to ensure that all policies are enforced in a consistent manner across the organization.
Trends: Federal law does not have a paid sick leave law - however, there is a push for the federal government to enact such a law. Connecticut and certain municipalities (for example, the District of Columbia, San Francisco, Philadelphia and Seattle) are required to provide eligible employee with paid sick leave - though the requirements for leave vary from municipality to municipality. Many states are considering following this trend.
The EEOC is targeting employers that have a policy which calls for the automatic termination of an employee after the employee has been absent for a certain period of time. The EEOC believes that such policies do not properly meet the employer's obligation to engage in the Americans with Disabilities Act's (ADA's) interactive process to determine if a reasonable accommodation is necessary. Employers must conduct an individualized case-by-case analysis of the employee's situation and the employer's obligation to reasonably accommodate.
Author: Melissa S. Burdorf, JD, Legal Editor
Paid sick leave is generally not required under federal or state law (with the exception of Connecticut). However several municipalities require paid sick or unpaid sick leave (depending on the size of the employer) and legislation is pending in a number of jurisdictions. This policy is designed for employers who are mandated by law to provide paid sick leave and who do not already have a paid time off policy that allows leave for the same qualifying reasons and under the same conditions (e.g., amount of leave, permit carry over leave, allow temporary employees to take leave, etc.) as the applicable law.
The Family and Medical Leave Act (FMLA), the Americans with Disabilities Act Amendment Act (ADAAA), and various state and municipal laws address mandatory leave for qualified individuals to care for qualifying medical conditions. This policy does not address compliance with such laws. Likewise, this policy is not designed to cover sick leave for employees covered by a collective bargaining agreement (CBA). This policy focuses instead on voluntary sick leave for individuals not otherwise eligible for federal, state or municipal leave laws. Although voluntary sick leave is not required by federal or state law, such policies are important for employee morale and for handling occasional absences for sickness. Therefore, employers should adopt written policies regarding voluntary sick leave.
This Legal Insight examines the intersection of rights that has been referred to in publications and presentations as "The Bermuda Triangle," and includes a discussion of FMLA, the ADA and workers' compensation laws.
In-depth review of the spectrum of West Virginia employment law requirements HR must follow with respect to FMLA.
Effective April 1, 2014, or upon the expiration of a current collective bargaining agreement (if applicable), whichever is later, an amended paid sick leave law will require a private employer in New York City with five or more employees (prior law had to have at least 15 employees) to provide an eligible employee with paid sick leave.
As mandated by San Francisco's Office of Labor Standards Enforcement, all employers with employees in San Francisco must post the San Francisco Paid Sick Leave Poster.
In-depth review of the spectrum of New York employment law requirements HR must follow with respect to FMLA.
In-depth review of the spectrum of New York employment law requirements HR must follow with respect to various other leaves.
In-depth review of the spectrum of Tennessee employment law requirements HR must follow with respect to FMLA.
In-depth review of the spectrum of Michigan employment law requirements HR must follow with respect to FMLA
HR guidance on various intersecting federal and state laws addressing employee leaves of absences.