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
Updated policy and guidance to highlight that the notice should generally be attached to the handbook or other benefits resource; updated guidance to reflect EEOC guidance on employer-provided leaves of absence as a reasonable accommodation under the ADA.
Revised policy to further clarify the manner in which an employee may use sick time.
Updated guidance to reflect EEOC guidance on employer-provided leaves of absence as a reasonable accommodation under the ADA.
Enhanced to improve the scope of coverage regarding billing disputes over responsibility for medical treatments, lien filing fees and lien filing process.
Updated to reflect forthcoming amendments to the Victims' Economic Security and Safety Act.
Updated to reflect forthcoming amendments to the domestic violence leave law in Illinois.
Massachusetts employers with 50 or more employees seeking to inform employees about the availability of time off for veterans to participate in Veterans Day and Memorial Day activities and to demonstrate compliance with Massachusetts 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.