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
The US Department of Labor (DOL) has filed a lawsuit against DNA Diagnostics Center, Inc. after an investigation revealed that DNA illegally fired an employee who requested and took leave under the Family and Medical Leave Act (FMLA). In addition to seeking money damages, the DOL has asked the court to require DNA to reinstate the employee and order it to comply with the FMLA going forward.
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In-depth review of the spectrum of Illinois employment law requirements HR must follow with respect to other leaves.
In-depth review of the spectrum of Illinois employment law requirements HR must follow in respect to FMLA.
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HR guidance on various intersecting federal and state laws addressing employee leaves of absences.