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
New Mexico employers seeking to educate employees about their reinstatement rights following military service and to demonstrate their compliance with New Mexico's military leave law should consider including this model policy statement in their handbook.
This chart provides an overview of private sector employee leave laws by state and municipality.
This new Quick Reference chart lists the private sector employee leave laws passed by each state and some major municipalities.
The New Mexico Military Leave handbook statement has been enhanced to include leave rights for National Guard members.
Oregon's Bureau of Labor Industries issued proposed rules to clarify some of the provisions of the new paid sick and safe time law, effective January 1, 2016.
In-depth review of the spectrum of Oregon employment law requirements HR must follow with respect to other leaves.
Illinois employers seeking to educate employees about the availability of military leave and to demonstrate compliance with Illinois' military leave law should consider including this model policy statement in their handbook.
Washington employers with at least five full-time equivalent (FTE) employees (located anywhere) who have any employees that perform more than 240 hours of work per calendar year within the City of Seattle should consider including this model policy statement in their handbook.
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.
A new letter can be used to request that an employee be excused from serving on a jury or to defer jury service based on an undue hardship or extreme inconvenience to the employer's business operations.
HR guidance on various intersecting federal and state laws addressing employee leaves of absences.