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 California, Connecticut, Massachusetts and Oregon, and several municipalities (e.g., 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 other jurisdictions 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
New York Attorney General Eric Schneiderman has reached a novel settlement with Bon-Ton Stores in a discrimination case brought by a domestic violence victim, which he calls a "model for other employers." Under New York state law, domestic violence victims are a protected class.
Pittsburgh has delayed implementation of its Paid Sick Days Act from January 11, 2016, to March 11, 2016.
Elizabeth, New Jersey, has enacted a paid sick leave law that will take effect March 2, 2016.
California employers seeking to educate employees, including supervisors, about the availability of leave for certain felonies and to show their compliance with California law should consider including this model policy statement in their handbook.
California employers seeking to educate employees, including supervisors, about the availability of leave to appear in court or at any proceeding in which the employee's rights as a victim are at issue, in compliance with California law should consider including this model policy statement in their handbook.
California employers seeking to educate employees about the availability of leave for certain emergency responders and to demonstrate compliance with California law should consider including this model policy statement in their handbook.
California employers with more than 15 employees seeking to educate eligible employees about the availability of leave for Civil Air Patrol missions and to demonstrate their compliance with the Civil Air Patrol Employment Protection Act should consider including this model policy statement in their handbook.
Jersey City employers with 1-9 employees seeking to educate employees about the availability of unpaid sick time and to show their compliance with Jersey City's Earned Sick Time Ordinance (ESTO) should consider including this model policy statement in their handbook.
Effective December 27, 2015, Jersey City, New Jersey's Earned Sick Time Ordinance is amended to require more employers to provide paid sick leave.
HR guidance on various intersecting federal and state laws addressing employee leaves of absences.