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
The Occupational Safety and Health Review Commission (OSHRC) has ruled that the confidentiality provisions of the Family Medical Leave Act (FMLA) supersede an employer's duty to record injuries and illnesses as required by the Occupational Safety and Health Administration (OSHA) in Secretary of Labor v. United States Postal Service.
Emailing Family and Medical Leave Act (FMLA) notices to employees may not suffice without proof the employee actually received the email, a court held in Gardner v. Detroit Entertainment, LLC, d/b/a Motorcity Casino.
The Minimum Wage, FMLA, Other Leaves and Employee Communications sections of the Employment Law Manual have been updated after the San Diego City Council repealed its new minimum wage and paid sick leave ordinance.
New York employers that have four or more employees, have employees working in New York City and that are seeking to inform employees, including supervisors, that the company will provide reasonable accommodations to New York City employees with needs related to pregnancy, childbirth or a related medical condition should consider including this model policy statement in their handbook.
New York employers with fewer than 10 employees that are seeking to educate employees about the availability of jury and witness duty leave and to demonstrate compliance with New York's jury duty leave law should consider including this model policy statement in their handbook .
New York employers with 10 or more employees that are seeking to educate employees about the availability of jury duty leave and to demonstrate compliance with New York's jury duty leave law should consider including this model policy statement in their handbook.
New York employers seeking to educate employees about the availability of time off to vote and to show their compliance with New York's voting leave law should consider including this model policy statement in their handbook.
New York employers operating a factory, mercantile establishment, hotel, restaurant, theater or elevator that are seeking to inform employees that they will receive one day of rest in each weeklong work period and to demonstrate compliance with New York law should consider including this model policy statement in their handbook.
Starting December 22, 2014, New York employers seeking to inform employees about the availability of and eligibility requirements for volunteer emergency responder leave and to demonstrate compliance with New York law should consider including this model policy statement in their handbook.
New York employers seeking to ensure that parental leave is offered to adoptive parents in compliance with New York's Social Services 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.