Federal law and guidance on this subject should be reviewed together with this section.
Author: Susan A. P. Woodhouse, Littler
- Georgia does not have a state family and medical leave law applicable to private employers. See Family and Medical Leave.
- A covered employer that provides sick leave must allow employees to use up to five days per year to care for an immediate family member. See Kin Care Leave.
Family and Medical Leave
Georgia does not have a state family and medical leave law applicable to private employers. However, a Georgia employer with 50 or more employees is likely required to adhere to the federal Family and Medical Leave Act (FMLA).
Retaliation: Be wary of potential liability for FMLA retaliation under the cat's paw theory, wherein an employer can be held liable for employment discrimination based on the discriminatory animus of a lower-level manager or supervisor who influenced, but did not make, the final employment decision. The 11th Circuit Court of Appeals (covering Alabama, Florida and Georgia) extended the cat's paw theory to an FMLA retaliation claim in Hyde v. K.B. Home, Inc., +355 F. Appx. 266 (2009). See FMLA: Federal.
The Supreme Court ruled that the 14th Amendment requires a state to do the following:
- License a marriage between two people of the same sex; and
- Recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.
Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015).
Same-sex marriage is legal nationwide, and couples lawfully married in any state, including Georgia, are entitled to FMLA spousal leave benefits.
An employer should be careful if it seeks to confirm an employee's spousal relationship (for purposes of FMLA) to ensure it does not discriminate in any way. While the FMLA allows an employer to confirm a family relationship, the employer's practices to confirm such relationships should be the same for employees in same-sex marriages as those in opposite-sex marriages (e.g., if an employer does not ask heterosexual employees for marriage licenses it should be careful about asking homosexual employees for such documentation).
Apart from FMLA considerations, employers with employees residing in Georgia should look at existing policies that provide for leave based on spousal relationships, such as bereavement leave or military leave. Policy language (such as how a spouse is defined) may need to be revised.
Kin Care Leave
An employer with 25 or more employees must allow eligible employees to use up to five sick leave days per calendar year to care for an immediate family member.
A covered employer should consider including a kin care leave policy in its handbook to inform employees of their rights under Georgia law to use paid sick leave benefits to care for an immediate family member.
Leave does not need to be provided if:
- Sick leave is not already provided to employees;
- An employee stock ownership plan is already offered to employees.
Sick leave means time away from work due to an employee's own incapacity, illness or injury, for which the employee receives his or her regular salary, wages or other remuneration. It does not include paid short-term or long-term disability.
An immediate family member means an employee's:
- Parent; or
- Any dependents as shown in the employee's most recent tax return.
To be eligible for leave an employee must work at least 30 hours per week for salary, wages or other remuneration.
An employee may not use sick leave until it has been earned. An employee who uses sick leave must comply with the employer's sick leave policy, such as the notice required to use the leave.
The law does not extend the maximum leave period to which an employee is entitled under the federal FMLA, regardless of whether the employee receives sick leave compensation during FMLA leave. Under the FMLA, an employee may receive up to 12 weeks of unpaid leave to care for a sick spouse, parent or child with a serious health condition. However, the Georgia law covers other family members, such as grandparents and grandchildren, who are not covered under the FMLA.
If Maya uses five days of sick leave to care for her grandfather who has a serious health condition, then she would still be entitled to the full 12 weeks of FMLA leave. However, if Maya uses five days of sick leave to care for her husband who has a serious health condition, then the leave will run concurrently with FMLA leave and she will have 11 weeks of FMLA leave remaining.
If employers have a policy allowing sick leave to be used to care for family members the policy must comply with the law (e.g., covers the same immediate family members). Policies that offer greater benefits than provided by law do not need to be altered.
The law does not create a cause of action against the employer nor does the law have any enforcement mechanism or penalties for noncompliance.
The law will be repealed on July 1, 2020, unless extended by an Act of the General Assembly.
Interaction of Leave Laws
Other types of leave may be available to Georgia employees - some required by federal, state or local law, and some provided by company policy, as well as several sources of income replacement. See Other Leaves: Georgia. While some of these laws can run at the same time, others cannot.
Remain alert to the various types of leave available and take care to track an employee's leave of absence, including:
- The date the leave begins;
- The type of leave; and
- The expected return date.
There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.