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
As required by the California Division of Labor Standards Enforcement (DLSE), any employer that has at least one employee who works more than 30 days in a year in the State of California must post the California Paid Sick Leave Poster.
In-depth review of the spectrum of Arkansas employment law requirements HR must follow with respect to FMLA.
In-depth review of the spectrum of District of Columbia employment law requirements HR must follow with respect to FMLA.
In-depth review of the spectrum of Mississippi employment law requirements HR must follow with respect to FMLA
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Delaware employers with four or more employees that seek to inform employees, including supervisors, that employees may be entitled to a reasonable accommodation for known limitations relating to pregnancy, childbirth or related conditions (including lactation) should consider including this model policy statement in their handbook.
Delaware employers seeking to educate employees, including supervisors, about the availability of leave for this purpose and to show their compliance with Delaware's crime victim leave law should consider including this model policy statement in their handbook.
Delaware employers seeking to educate employees, including supervisors, about the availability of leave for service as a juror and to show their compliance with Delaware's jury duty leave law should consider including this model policy statement in their handbook.
Delaware employers with more than 20 employees and that seek to inform employees that accrued vacation or paid time off can be used for the purpose of working as an election official should consider including this model policy statement in their handbook.
Delaware employers seeking to educate employees about the availability of military leave and to demonstrate their compliance with Delaware's military leave 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.