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
Portland, OR employment attorney Kyle Abraham discusses the growing trend of paid sick leave laws applying to private-sector employers, as well as the distinction between paid family leave and paid sick leave, on a new XpertHR podcast.
The City of Newark Mayor Luis Quintana expressed his proud support of paid sick leave for "Newark's hard-working families." On January 29, 2014, Mayor Quintana signed into law a paid sick leave ordinance that will require Newark private employers to provide an eligible employee with paid sick leave.
This podcast examines the trend of paid sick leave laws and what they mean for HR with Portland, OR, employment attorney Kyle Abraham of Barran Liebman.
California's Department of Fair Employment and Housing (DFEH) has published proposed regulations that would amend the current regulations to the California Family Rights Act (CFRA).
The FMLA: Kentucky and FMLA: Virginia sections of the Employment Law Manual have been updated to reflect two recent court cases that impact the rights of same-sex couples in both states.
In-depth review of the spectrum of Kentucky employment law requirements HR must follow with respect to FMLA
In-depth review of the spectrum of Virginia employment law requirements HR must follow with respect to FMLA.
Effective January 21, 2014, amendments to the New Jersey Family Leave Act and the New Jersey Security and Financial Empowerment Act have established new eligibility criteria.
In-depth review of the spectrum of New Jersey employment law requirements HR must follow with respect to FMLA.
In-depth review of the spectrum of New Jersey employment law requirements HR must follow with respect to other types of leave.
HR guidance on various intersecting federal and state laws addressing employee leaves of absences.