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 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 (by providing all employees with the same benefits) and for administrative and morale reasons.
When applicable, employers must comply with the federal Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), 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 local laws when managing leaves of absence. Many state laws differ from federal law (e.g., states may require paid leave or 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 (i.e., moonlighting) while other states specify that an employer may prohibit outside employment that creates a conflict of interest. Employers need to be careful that their leave policies comply with the applicable law that creates the greatest degree of protection for employees.
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 require paid sick leave; however, there is a push for the federal government to enact such a law. Employers in Connecticut and certain municipalities (for example, the District of Columbia, New York City, San Francisco and Seattle) are required to provide eligible employees with paid sick leave, though the requirements for leave vary. Many states are considering following this trend.
The Equal Employment Opportunity Commission (EEOC) is targeting employers that have a policy calling 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 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
In-depth review of the spectrum of Washington employment law requirements HR must follow with respect to FMLA.
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.
Multistate employers face the challenge of complying with not only federal laws, but also differing state and local laws. This section highlights some of the states' differences in terms of preemployment testing and background checks, noncompetition and nonsolicitation agreements, and discrimination, pay and leave rules.
Hawaii employers seeking to inform employees, including supervisors, that the company will provide reasonable accommodations to victims of domestic or sexual violence should consider including this model policy statement in their handbook.
Hawaii employers with 100 or more employees in Hawaii during each of 20 or more calendar weeks in the current or preceding calendar year should consider including this model policy statement in their handbook.
Hawaii employers seeking to educate employees about the availability of pregnancy disability leave and to demonstrate compliance with Hawaii law should consider including this model policy statement in their handbook.
Hawaii employers seeking to educate employees about the availability of leave for Hawaii National Guard members and to demonstrate compliance with Hawaii's military leave law should consider including this model policy statement in their handbook.
Hawaii employers should consider including this model policy statement in their handbook.
Hawaii employers seeking to educate employees about the availability of time off to vote and to show their compliance with Hawaii's voting leave law should consider including this model policy statement in their handbook.
Hawaii employers with 50 or more employees seeking to inform employees about the availability of domestic and sexual violence victim leave and to show their compliance with Hawaii law should consider including this model policy statement in their handbook.
HR guidance on various intersecting federal and state laws addressing employee leaves of absences.