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Other Leaves: Federal

Other Leaves requirements by state

Authors: Christopher K. Ramsey and Sarah Andrews, Morgan, Lewis & Bockius LLP

Summary

  • When developing leave policies, an employer should consider which employees will be eligible for the various leave benefits it offers, how employees should request leave, compensation and benefits issues during leave and whether employees may moonlight while on leave. See Leave and PTO Policy Considerations.
  • There are many different types of leaves addressed by various federal and state laws, or that are commonly granted by an employer. Some examples are paid sick leave, bereavement leave and religious leave. See Types of Leave.
  • Federal contractors must comply with specific paid sick leave requirements mandated by an executive order and its implementing regulations. These include the rate of leave accrual, employee eligibility and the purposes for which an employee may use sick leave. See Paid Sick Leave Executive Order.

Leave and PTO Policy Considerations

Employee Eligibility

When developing leave policies, the first thing an employer must decide is which employees will be eligible for the various leave benefits it offers. For example, an employer should:

  • Determine whether it should offer part-time employees the same benefits as full-time employees;
  • Consider offering leave on a pro-rata basis, based on the number of hours worked;
  • Weigh the benefits of extending certain types of leaves to part-time or seasonal employees against the administrative and financial burdens of offering and monitoring them; and
  • Determine whether different leave benefits will be offered based on exempt and nonexempt status or based on position or management level.

Independent Contractors. An employer should be cautious about extending leave benefits traditionally reserved for employees to independent contractors. The fact that an employer offered such benefits to independent contractors can be used against it as evidence of worker misclassification.

If an employer has misclassified employees as independent contractors, their subsequent reclassification as employees triggers a number of responsibilities. In particular, the employer must withhold income and employment taxes (e.g., Social Security and Medicare) from their pay, timely remit the withholdings and file various reports with the IRS and other government agencies. In addition, the employer may have to deal with costly misclassification lawsuits and potential penalties.

Leave Request Process

In general, an employer should have a written policy governing all leaves that it has decided to offer and that it is required to offer by federal, state or local law.

For a listing of various types of leave that employers often choose or are required to provide as a benefit of employment, see Types of Leave.

A leave policy should address all aspects of the process by which an employee must request leave, such as contact persons, and notice and documentation requirements.

Who to contact. A leave policy should clearly inform employees about whom they must contact to make leave requests (e.g., their direct supervisor, the HR department or a third-party administrator). If different individuals are authorized to grant requests for particular types of leaves, the policy should specify the contact person for each leave type.

Amount of notice. The policy should specify how much advance notice an employee must provide of the need for leave for a foreseeable or planned absence. An employer can either generally require that employees provide as much advance notice as possible, or it can more specifically require employees to provide a minimum number of days of advance notice (e.g., 30 days). Guidance regarding emergency situations in which advance notice is not possible, such as an unexpected family death or illness, should also be included.

How to request leave. The policy should specify how an employee must request leave. For example, may an employee make a verbal request or must requests be made in writing? If the latter, is an email request acceptable or is there a specific form that must be filled out? If an employee calls in, may he or she leave a voice-mail message for a designated contact or must he or she actually speak to a designated contact?

Verification documentation. In addition, an employer may wish to require employees to verify an absence. First, the employer should be clear on the circumstances under which documentation will be required (e.g., certain types of leave, certain lengths of leave, if abuse of leave is suspected). Second, employees must understand what types of documentation are acceptable. However, an employer should weigh the administrative burden of having to verify such documents with the need to ensure that employees are not abusing leave policies.

The following table provides examples of leave verification documentation.

Type of Leave Required Documentation

Bereavement Leave

Obituary

Blood, Bone Marrow or Organ Donor Leave

Signed documentation from a medical professional

Education Leave

Certification of attendance, transcript, certificate or diploma

Jury Duty

Summons or certificate of attendance

Medical Leave

Signed documentation from a medical professional

School Visitation Leave

Signed documentation from a school administrator

Voting Leave

Certificate of voting, voting sticker, voting stub

Witness Duty

Summons or subpoena

Compensation for Leave Time

Paid time off. Paid time off (PTO) is any time not worked by an employee for which compensation is paid. PTO is generally not required by federal law, but the majority of employers give their employees PTO. Most employers find that providing PTO keeps them competitive in attracting new talent and retaining current talent.

For a customizable PTO policy, see Paid Time Off Policy.

PTO may be offered in the traditional form of distinct vacation, sick, personal or other leave, or in the form of a PTO plan that lumps all leave types into one leave bank.

In addition, some states and municipalities require employers to offer paid leave or paid sick leave. Legislation is also pending in a number of additional jurisdictions. Some states have a paid family leave insurance fund that offers wage replacement when employees take leave to care for themselves or an ill family member or to bond with a new child.

Unpaid time off. An employer is not required to offer unpaid time off. However, many employers find it useful to have a policy that allows for unpaid leave at their discretion.

Leave Policy Factors to Consider

When deciding whether to allow paid time off, an employer should consider:

  • How employees will accrue time off;
  • How much time off to offer annually; and
  • How to calculate the amount of time used.

An employer can grant time off in a lump sum at the start of the year (i.e., frontloaded) or it can allow employees to accrue hours or days of paid leave gradually at a certain rate based on time worked (e.g., an employee may accrue 12 hours or 1.5 days of PTO per month). However, granting all time off at the beginning of the year in a lump sum may enable employees to abuse the policy. Additionally, if state law requires an employer to pay out any unused vacation upon an employee's separation from employment, the accrual method may reduce the total amount of unused leave time that must be paid if the separation from employment occurs early in the year.

Although some employers award a uniform amount of time off to all employees, a more common approach is to correlate the amount of paid leave offered with the length of service, which results in long-term employees having more paid leave than newer employees. For example, an employee with under two years of service gets three weeks of PTO per year, an employee with two to five years of service gets four weeks of PTO per year and those with over five years of service get five weeks of PTO per year.

Employers account for time off in various ways. Some employers base it on the calendar or fiscal year and others on employees' individual employment anniversary dates.

Benefits During Leave

During an employee's paid leave of absence, the employer usually continues making its own contributions toward the cost of the employee's benefits and continues all benefit deductions from the employee's pay. This includes deductions for medical and dental insurance, retirement plans, flexible spending accounts and any voluntary plans in which the employee is enrolled.

During an unpaid leave of absence, the employer generally discontinues making its share of contributions toward the cost of the employee's medical, dental and life insurance benefits. The employer may offer employees these two options regarding benefit plans:

  1. Continue the coverage for the duration of the unpaid leave of absence by arranging for personal payments. The employer's contributions toward any applicable premium resumes for the coverage month in which or after which the employee returns to work.
  2. Let the coverage lapse. The employee has the option to reapply for his or her benefit plans within a certain number of days after returning to work. The employer's contributions toward any applicable premium resumes for the coverage month in which or after which the payroll or benefits department receives the employee's application.

Leave-Donation Programs

When an employee faces a serious illness or other personal issue that exhausts the paid leave to which he or she is entitled (e.g., PTO, sick leave), an employer may offer a leave-donation program. This type of leave program allows co-workers to donate their own accrued, unused paid leave days (e.g., vacation, PTO, sick days) to colleagues in need.

When implementing a leave-donation plan, an employer should do all of the following:

  • Determine whether to use a system that allows direct donations to individuals or that provides for anonymous donations to a central leave bank from which eligible employees can receive leave, or a combination of these approaches;
  • Publish a written leave-donation policy or handbook statement;
  • Require employees to exhaust any accrued paid leave, including sick leave and vacation time, before collecting and using any donated time;
  • Require that donated time in excess of the amount of time off needed be returned to the donor or the bank;
  • Specify any eligibility restrictions for donors and recipients, such as requiring donors to have been employed for at least one year;
  • Specify the types of situations and circumstances for which an employee may use donated leave. For example:
    • An employee or an employee's family member has a critical or catastrophic illness or injury, such as cancer, a heart attack, major surgery, a serious accident or other serious or life-threatening illness (an employer should provide a clear definition of the term family member); and
    • An employee is facing a personal crisis that has a substantial impact on his or her well-being, such as a fire or storm that substantially damaged the employee's primary residence;
  • To promote consistency and limit the risk of discrimination, determine employee eligibility and the amount of leave to donate from a leave bank based on clearly established criteria that is evaluated by the same person or committee;
  • Impose a maximum amount of donated time that a recipient may use (e.g., 10 or 12 weeks);
  • Set maximum donations to prevent employees from donating more than a certain percentage of their accrued time (e.g., 60 percent). This will ensure that they have sufficient time off for their own personal needs; and
  • Obtain an employee's written authorization when seeking donations on the employee's behalf. Even with authorization, an employer should be careful not to disclose any specific information about an employee's or a family member's health or medical condition or other personal information to donors or potential donors.

Practical Example

The authorization may state:

I, [enter employee's name], authorize [enter employer's name] to seek donation of leave time when my regular leave and accrued PTO are exhausted by placing my name on the Leave Donation List/Website.

It is important for an employer to account for the tax implications of a leave-donation program on employees' compensation. Employees may not be taxed on the time they donate; however, employees may be taxed on the time they receive.

Use-It-or-Lose-It Policies

Some employers have use-it-or-lose-it policies under which an employee who fails to use some or all of his or her accrued vacation time (or other PTO) for a specific year forfeits the unused time. A number of states have laws that protect employees' accrued PTO. In some states, use-it-or-lose-it policies are illegal, and employees must be able to roll over unused accrued time to the following year or be compensated for it. For these states, an employer may be able to implement vacation accrual caps that allow employees to roll over unused accrued time until they hit a certain point, after which their vacation stops accruing. Other states allow forfeiture of unused accrued time, but only if an employer maintains a written policy that informs its employees of this practice. For information on whether a jurisdiction allows caps on vacation/PTO accrual and allows use-it-or-lose-it policies, see Vacation and Paid Time Off Benefits by State.

Sometimes employees do not take vacation or other PTO because they believe that their workload will not permit them to take the time off. Accordingly, if an employer wants an employee to have the benefit of vacation time, it should craft and implement policies that make use of the time possible. An employer should encourage dialogue with its employees and value their feedback when setting deadlines to enable a healthy balance of work goals and time off.

Payment of Unused Time Upon Termination

State laws on payment of unused, accrued leave upon termination vary.

For example:

  • Many states do not permit a deduction from or loss of payment for vacation time that has accrued but is unused at the time of an employee's termination.
  • Some states permit employees to forfeit vacation time based on a written employer policy.
  • Other states simply allow employees to forfeit the accrued time.
  • Many states also prohibit use-it-or-lose-it policies for accrued sick leave, in which case the employer must pay the employee for any unused sick leave upon termination.

In addition, in some states PTO banks are subject to the same rules as traditional time off policies with regard to proration, nonforfeiture and payouts. In a minority of states, an employer is required to compensate its employees for unused time only if the employer's policy fails to inform employees that they will not be compensated for unused time upon termination. In these states, an employer that offers PTO banks may end up paying employees for all unused PTO because there is no distinction between vacation time, personal time and sick time. In these states, it may be advantageous for an employer to institute leave policies under which employees gradually earn or accrue PTO throughout the year so that, upon termination, the employer only has to compensate employees for any PTO they actually earned up to the date of termination.

Understandably, employers may be concerned about financial liability when it comes to payout of accrued time off at termination. An employer can reduce the potential liability by:

  • Instituting an eligibility period during which employees may not accrue leave until they complete a probationary period; and
  • Capping accruals at a certain threshold, and once an employee has reached that limit, preventing any further accrual until a sufficient amount of PTO is used.

Moonlighting While on Leave

An employer's leave policy should include a written statement notifying employees of its position regarding accepting another job or pursuing an entrepreneurial opportunity while on leave. Although some states' laws protect an employee's right to moonlight, others specify that an employer may prohibit outside employment if it creates a conflict of interest.

However, unless state or local law dictates otherwise, an employer may consider the outside employment of an employee on leave as a voluntary abandonment of the employee's position and treat it as a voluntary resignation. This causes the employee to forfeit coverage under any related benefit plan as well as any seniority.

Voluntary separation may be deemed to have occurred regardless of the amount of income the employee generates from the other employment and regardless of the length of time the employee intended to perform the services. However, if an employer's policy is to evaluate each occurrence of outside employment on a case-by-case basis, the employer should not include a general rule in its leave policy stating that all employees who accept outside employment will be terminated.

An employer should also consider the reason for the leave in assessing outside employment. An employee may lose his or her job-protected status under certain laws by engaging in activities incompatible with the leave. For example, an employee out on Family and Medical Leave Act (FMLA) leave for his or her own serious health condition may forfeit the right to leave by taking on physical work that undercuts the claim of a serious illness. On the other hand, an employee taking unpaid FMLA leave may need to find paid employment. For example, an employee who requires FMLA leave to accommodate a family member's medical treatment schedule may find another job with hours that suit the treatment schedule.

For a customizable outside employment policy and handbook statement, see Outside Employment Policy; Outside Employment Handbook Statement.

Failure to Return From Leave

An employee's unequivocal notice of intent not to return to work terminates an employer's obligations under certain leave laws. For example, this would apply to an employer's duty under the Family and Medical Leave Act (FMLA) to maintain an employee's health benefits, reinstate an employee or provide additional time off as a reasonable accommodation under the Americans with Disabilities Act ADA). The employer should seek clarification if the employee is unclear about his or her intent to return to work.

Abuse of Policy

An employer should also consider including a statement in its policy informing employees that those who abuse the policy or repeatedly fail to give notice may be subject to discipline, up to and including termination.

Supervisor Training

An employer should train supervisors and managers to be knowledgeable enough to apply the policy correctly and to recognize when a policy requires them to refer employees to HR.

Compliance With Federal and State Laws

An employer's leave policies must comply with various federal and state laws. Federal laws such as the FMLA, Americans with Disabilities Act (ADA), Pregnancy Discrimination Act (PDA) and Title VII generally create a floor for employee protections. State laws provide additional protections. An employer should conform its leave policies to the law that provides employees with the greatest degree of protection.

Additionally, larger multistate employers may want to consider adopting uniform policies across all states. Although this may create a situation in which some employees receive more benefits than they are legally entitled to, it eases administrative burdens and creates a more cohesive work culture. Ultimately, an employer should choose the method that is legally sound and meets its business needs.

Prohibited Actions

An employer must be cognizant of the risk of legal claims for interference, retaliation and discrimination under federal, state and local law when administering leave policies. The best way to reduce risk is to ensure that all policies are followed consistently across the organization.

Types of Leave

Administrative Leave

Administrative leave is a general, temporary leave status that can be paid or unpaid. Generally, administrative leave is a discretionary form of leave that an employer grants an employee under certain circumstances, as opposed to a traditional leave benefit.

Administrative leave can be a useful catchall form of leave. The following are some common situations that may call for administrative leave:

  • An employee has used all of his or her PTO but needs additional time off due to an illness.
  • An employee needs more time to attend a funeral than the amount of time permitted by the employer's bereavement policy.
  • An employee is the subject of an external investigation or has been arrested and is unable to report to work.
  • An employer believes an employee's behavior may be dangerous to other employees or to the employee himself or herself (e.g., behaving erratically or making violent threats).
  • An employer has reason to believe an employee is a suspected target of workplace violence.

For more information on when administrative leave may be appropriate, see Managing Employees in Special Situations: Federal.

The following tips will help an employer effectively manage administrative leave:

  • Publish a written policy that gives the employer discretion to place employees on administrative leave. This type of discretion allows an employer to address instances in which an employee's absence may not otherwise fall within one of the employer's other leave policies but leave would be beneficial or appropriate. It also establishes the employer's right to involuntarily place employees on leave as the employer sees fit.
  • Indicate whether administrative leave will be paid or unpaid, and how long administrative leave may last.

Bereavement Leave

Under federal and most states' laws an employer is not required to offer bereavement leave. However, Illinois, Oregon and Tacoma, Washington, do have a bereavement leave law. Nevertheless, most employers voluntarily offer employees PTO to attend family funerals. Some employers also offer additional time off for employees who need time to grieve and to settle a deceased family member's estate.

When offering bereavement leave, an employer should consider the following tips:

  • Publish a written bereavement leave policy or handbook statement.
  • Specify that the employee must inform the employer of the death after finding out about it.
  • Define the class of individuals for whom employees may take bereavement leave:
    • Most policies allow employees to take leave for the death of immediate family members and define these deceased individuals to include only an employee's spouse, parent, sibling, child, grandparent, father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law and grandchild.
    • Many employers also permit bereavement leave for the death of an employee's domestic partner or civil union partner. In some states, an employer that provides bereavement leave for the death of an employee's spouse or a member of the spouse's immediate family must provide the same leave for the death of an employee's domestic partner, civil union partner or a member of the partner's family.
  • State the number of days an employee may take off. Some employers allocate a specific number of days depending on the degree of familial relationship (e.g., four days of leave for an immediate family member and one day of leave for a more distant relative and for nonrelatives).
  • Specify whether the leave is paid or unpaid. The overwhelming majority of employers offer paid leave.
  • Indicate whether the employee is required to provide any documentation (e.g., an obituary) when returning to work.
  • Specify how the employer will address requests for additional time off beyond the amount of time provided in the policy. Most employers allow employees to use available vacation time or sick days for additional time off if necessary. Because the loss of a family member can be a very emotional and stressful time, an employer may also want to consider granting, upon request, a certain number of days of unpaid leave when, for example, an employee requests more time to grieve or settle the deceased's estate. See How to Deal With Grieving Employees.
  • Inform employees of any employee assistance programs (EAPs) or other counseling programs that are available during leave or after an employee's return to work.

An employer should also be aware of the potential relationship between a religious accommodation and a request to attend a funeral when evaluating bereavement leave requests. Title VII requires employers to reasonably accommodate an employee's religious beliefs and practices, unless doing so would cause an undue hardship on the employer's business. There may be instances when an employee requests a longer leave than allowed under a bereavement leave policy to attend a religious funeral ceremony or rite.

Death of an employee. An employee's death necessitates flexibility by an employer, including in the use of leave by grieving coworkers. In the event of an employee's death, an employer should ensure that managers and HR personnel are equipped to handle the unfortunate situation and are capable of implementing the tools and strategies to assist other employees. For example, an employer should:

  • Ensure that details on funeral services, donation requests and other relevant details are communicated to employees;
  • Consider offering all employees leave to attending funeral and memorial services without having to use a vacation day or sick day; and
  • Offer employees the option of taking time out of their workdays to discuss their feelings or grief with HR or a counselor.

While some of these services will undoubtedly cause an interruption in the employer's normal business operations, an employer that deals well with the death of one of its own employees will ultimately foster a more productive workforce by taking the opportunity to show employees that they are valued.

FMLA and ADA implications. The death of a relative is not automatically covered by the FMLA. Although FMLA leave may be taken to care for a sick family member, it generally does not apply to the period after a relative's death when an employee may need to grieve or settle the deceased relative's estate.

However, under certain circumstances, an employee may be eligible for FMLA leave. For example, if the employee is depressed and that depression meets the FMLA's definition of a serious health condition, or if the employee is caring for a relative who has a serious health condition as a result of the family member's death, the employee may be eligible for FMLA leave. In addition, a grieving employee's depression may be an ADA-qualifying disability, and leave may be considered a reasonable accommodation.

Blood, Bone Marrow and Organ Donor Leave

Several states authorize unpaid leave time for blood, bone marrow and organ donation in addition to any medical, personal or other paid leave provided by private employers. Generally, the nature and length of the leave depends on the underlying reason for the leave. For example:

  • For an organ donor, the length of the leave of absence can vary from 30 days to 90 days.
  • For a bone marrow donor, the length of leave can vary from five days to 90 days.
  • For a blood donor, the length of leave can vary from three to seven hours.

However, many states require employees to use some amount of unused, accrued sick leave, vacation or PTO before taking unpaid leave. In states that have this requirement, the allowed leave of absence is usually no more than five days of paid leave per fiscal year. In addition, many employers require employee donors to provide written verification of their status as an organ or bone marrow donor.

To initiate an effective leave program for blood, bone marrow and/or organ donation, the employer should:

  • Publish a written donation leave policy or handbook statement, if the employer is located in a state that requires this type of leave or if it is an important value of the employer;
  • Make distinctions based on the type of procedure performed (e.g., the needs of an organ donor differ from those of a blood donor);
  • Require advance notice before an employee can qualify for coverage under the policy, except in emergencies where advance notice is impracticable (e.g., the donation is being made because of a car accident); and
  • Determine whether an employee's donation would qualify as a serious health condition under the FMLA that would reduce the FMLA entitlement.

Community Service Leave

Few state and municipal statutes entitle an employee to take time off to perform volunteer community service. The laws that do allow this generally do not permit an employee to take off more than three days in any 12-month period. Some employers do compensate employees for this time off. Some employers only authorize an excused absence if the community service activity:

  • Is directly related to the employer's mission;
  • Is officially sponsored or sanctioned by the employer; or
  • Will clearly enhance an employee's professional development or skills in his or her current position.

Community service leave is an attractive benefit for employees who appreciate the time away from their normal job duties to make new connections, build a sense of community, learn new skills and cultivate leadership capacities, all of which may ultimately benefit the employer.

These tips can help when an employer is considering or implementing community service leave:

  • Publish a written policy, if community service is an important value of the employer.
  • Decide whether participation in athletics, civic group meetings, fundraising and partisan political activities constitute community service. Also consider whether community service opportunities related to an employee's religious activities or place of worship qualify under company policy.
  • Decide whether the leave is paid or unpaid. Some employers believe that paying an employee for community service arguably contradicts the very essence of volunteering. Other employers find that compensating their employees for this time encourages leadership and civic responsibility among its workforce.
  • Require prior notice of an employee's community service leave in order to avoid unnecessary disruptions to work operations and productivity. Identify the entity (e.g., HR department) that will review employees' community service leave requests to ensure all applicable employment policies, collective bargaining agreements and regulations are followed. An employer may deny an employee's leave request if it will significantly impact the employer's operations and productivity or if there are budgetary limitations.
  • Determine whether community service leave encompasses travel time to and from the service project or is limited to the time spent actively performing the service. Some employers allow employees to charge a reasonable amount of travel time toward community service leave, but an employer may require the majority of leave time to be used in active service.

Crime Victim and Domestic Violence Leave

Many states have enacted expansive legislation providing job protection and leave to employees or their family members who have been victimized by crime or domestic violence. There is no similar federal law. Although the details of each state's law can vary significantly, most protect the right of a crime or domestic violence victim (or an employee with a family member who has been victimized) to leave work to:

  • Participate in a criminal proceeding involving the alleged offender;
  • Obtain or attempt to obtain an order of protection, an injunction against harassment or other injunctive relief to help ensure the health, safety or welfare of the victim; and
  • Obtain medical treatment needed because of the crime.

If the employer is located in a state that requires leave for victims of crime or domestic violence or if this type of leave represents an important value to the employer, the employer should:

  • Publish a written policy or handbook statement;
  • Check the threshold number of employees that triggers coverage under state or local law (some state or local paid sick leave laws also require leave for reasons related to domestic violence);
  • Define family member or relative (e.g., a child, spouse, parent, parent-in-law, grandparent) so that it is clear to whom the policy applies;
  • Understand that while some states' laws specify the maximum length of leave, other states' laws provide that the length of the leave should be reasonable but they do not define the term or cap the amount of leave that may be taken;
  • If leave is unpaid, specify whether employees may use accrued paid vacation, personal leave or sick leave; and
  • Review each case under the employer's FMLA policy when an employee needs to take time off for medical treatment. If an employee qualifies for leave under the FMLA due to a serious health condition, then that leave can run concurrently with crime or domestic violence victim leave, reducing the employee's FMLA leave entitlement.

Notice. Most states require employees to give their employer advance notice of the intent to take time off consistent with an applicable employer policy for requesting leave. However, state laws generally recognize that advance notice is not always practicable due to an emergency or unforeseen circumstance. Therefore, in such situations, employers usually require employees to provide notice no later than the end of the first day that leave is taken. If advance notice is feasible, an employer may require, and many states allow, the employee to submit appropriate documentation, such as:

  • A police report;
  • A court order;
  • Documentation from an attorney, medical provider or other relevant professional from whom assistance was sought; or
  • The employee's own written statement.

If applicable, the employer may require a copy of the notice of each scheduled proceeding provided to the victim by the relevant agency.

Confidentiality. Due to the potentially sensitive and personal nature of an employee's circumstances, many states require an employer to keep the employee's information confidential and limit what the employee may be required to disclose.

Reinstatement. In general, an employee who has been on leave must be restored to the position held before the leave began, or to an equivalent position with equivalent pay, benefits and other terms and conditions of employment. The right to restoration does not apply if the employee was hired to work for the employer by a temporary staffing company, or was hired to work for a specific term or project that concluded. An employer may face stiff penalties if it retaliates against an employee who has asserted his or her rights under state or local law.

For additional information generally on implementing, coordinating requirements of and training front line managers and supervisors on a domestic violence policy, see How can an employer implement a policy on domestic violence?; Handling Violence in the Workplace - Supervisor Briefing.

Educational Leave

An educational leave of absence allows an employee to receive further education or technical training. Educational leave is usually provided to help employees:

  • Acquire advanced knowledge and insight into new trends or techniques in the employee's particular field;
  • Increase their professional capacity;
  • Stay abreast of new developments in rapidly changing professional or technical fields;
  • Take a refresher course; and
  • Acquire special training in key occupations or those for which personnel are in short supply.

Employers generally extend educational leave to full-time employees either with full pay, partial pay or without pay. However, some employers designate a number of consecutive days or aggregate working days an employee may allocate to educational leave.

The following tips will help an employer properly implement educational leave:

  • Publish a written policy, if the employer anticipates regularly encountering this issue.
  • Determine whether the leave is paid or unpaid. An employer may use several flexible approaches when determining how to compensate an employee for educational leave. For example, an employer may reimburse an employee on unpaid or partially paid leave in part for related costs (e.g., school supplies, tuition and/or travel in conjunction with the approved educational leave).
  • Consider whether:
    • The employee's work schedule can be rearranged;
    • The employer's services will be impaired by the employee's leave of absence;
    • Any undue burden will be placed on another corporate division or employee(s) because of the employee's leave of absence; and
    • The requested training can be obtained in a more cost-effective way.
  • Address whether the leave of absence is contingent on the employee's intention to return to the employer. If an employer grants an employee a paid leave of absence for an extended period, the employer may require the employee to sign an agreement stipulating that the employee will be paid a stipend on the condition that the employee will return to work for the employer for a defined period of time upon the conclusion of the leave. The agreement may also provide that if the employee fails to complete his or her obligations under the agreement, the employee must reimburse the employer for up to 100 percent of the wages and expenses paid during the leave period.
  • Require the employee to provide reports from the educational/training institution on his or her attendance and progress, warning that failure to demonstrate satisfactory performance (e.g., passing scores or grades) is cause for discontinuing the educational leave or taking other disciplinary action.

Emergency Responder Leave

Federal law does not address whether an employee working for a private employer may take time off to provide aid or volunteer during a local, state or national emergency or disaster. However, some states have passed laws that address the right of such employees to take unpaid leave to serve as an emergency responder during a natural or other disaster. These laws generally apply to employees who are qualified:

  • Volunteer firefighters;
  • Rescue squad members;
  • Emergency medical technicians;
  • Reserve peace officers; and
  • Emergency rescue personnel.

State law may require these employees to inform their employer of their membership in an emergency services organization before they can qualify for protection under the law. In accordance with the applicable state law, employers usually must allow these employees to take a temporary leave of absence ranging from 14 to 20 days per calendar year. In some states, an employer may require the employee to provide advance notice of the need for leave (if possible) or to submit a written statement post-leave verifying the dates and duration of the leave and the service. Most states prohibit an employer from terminating, disciplining or discriminating against an employee for taking time off to perform volunteer emergency service.

The following tips help an employer initiate an effective program to provide leave for emergency responders:

  • Publish a written policy, if the employer is located in a state that requires this type of leave or if it is an important value of the employer.
  • Know whether state law requires the allowance of time off for the employee to train, participate in drills or practice exercises. If it does not, decide whether time off for training will be offered.
  • Decide whether an emergency must be declared by municipal, county, state or national officials before the employee can take time off. Some state laws specify this criteria.
  • Address whether the policy covers travel time, especially if the disaster is in another state and requires substantial travel time.

Most employers are familiar with the Family and Medical Leave Act (FMLA), which requires employers to provide up to 12 weeks of unpaid, job-protected family and medical leave for an employee's own serious health condition, to care for a family member with a serious health condition or for the birth or adoption of a child. While the FMLA provides baseline employee rights and employer obligations, state and local laws are permitted to exceed the minimum federal requirements and many do. For example, state laws may:

  • Have a lower threshold for employee eligibility regarding length of service or number of employees;
  • Require paid leave;
  • Extend the total duration of leave by requiring employees to exhaust federal leave entitlements before taking leave permitted by state law; and
  • Expand the eligible reasons for leave or the covered family members on whose behalf an employee may take leave.

An employer should become familiar with FMLA and state family and medical leave requirements and keep in mind that it must comply with whichever requirements, federal or state, provide the greatest protection or benefit to an employee.

An employer should also be aware of the FMLA's military family leave requirements, under which a covered employer must provide an eligible employee with 26 workweeks of leave to care for a military service member with a serious injury or illness during an applicable leave year.

Maternity, paternity and parental leave. Currently, there are no federal laws that require an employer to provide paid maternity and/or paternity leave. The FMLA only requires unpaid leave. The Pregnancy Discrimination Act (PDA) does not even require employers to provide leave at all; it only requires an employer to treat maternity leave the same as any other temporary disability leave. The PDA also prohibits an employer from forcing a pregnant woman to take time off if she is able to work and from imposing requirements that prevent female employees from coming back to work for a certain period of time after childbirth.

State laws may offer protections and requirements for employees taking maternity, paternity and/or parental leave. State laws may govern:

  • The duration of the leave;
  • Whether leave is paid or unpaid;
  • Whether pregnancy must be treated as a disability;
  • Provisions for less strenuous work options and reasonable accommodations;
  • Prohibitions against discrimination against pregnant employees;
  • Notification requirements; and
  • Reinstatement provisions.

Most states and federal law allow an employee eligible for one of these leaves to start the leave on the birth date of the employee's biological child. However, they also allow employees to take leave before the birth if medically necessary. Some state laws require employers to permit an employee to take the maximum number of weeks of leave available in the year on a consecutive basis and prohibit them from requiring an employee to take the leave on an intermittent basis.

For an example of a policy addressing the various issues related to paid parental leave, see Paid Parental Leave Policy.

When female employees take maternity leave, they usually receive some combination of paid sick days, paid vacation days, disability leave, state family leave insurance and unpaid FMLA leave. An employer should train its supervisors to communicate expectations clearly and develop a detailed plan with employees who need maternity leave. The plan should include a breakdown of how many vacation days, sick days, unpaid FMLA days and other leave days the employee intends to use.

Some employers offer paternity leave for fathers after the birth of a child, in addition to the other PTO that the employee is entitled to, so the father also can spend time bonding with the child.

Precise scheduling of maternity or paternity leave is not always possible. Some flexibility is needed to deal with the unpredictable nature of childbirth. Supervisors need to determine whether other employees can absorb the employee's workload during maternity or paternity leave, or whether it is necessary to fill the position with a temporary worker during the leave.

Pregnancy disability leave. Some states require employers to provide leave for pregnancy-related disability and others provide leave for any duration certified as medically necessary due to pregnancy. This leave is separate from, and may apply in addition to, the leave taken for the birth of a child or to bond with a child. For example, in some states, an employee may take up to 12 weeks of family and medical leave concurrently with disability leave and then additional time to bond with the child. Depending on the state, an employee may enjoy job-protected leave for up to six or seven months. An employer is generally not required to pay for these types of leaves, but it may be required to continue to contribute to an employee's benefits and to notify employees about state-funded programs that provide pay for this type of leave.

If an employer offers short-term disability leave, it must treat an employee's pregnancy and related conditions the same as conditions not related to pregnancy. For example, if an employer provides up to eight weeks of paid leave for temporary medical conditions, the employer must provide up to eight weeks of paid leave for pregnancy or related conditions.

Under EEOC guidance on workplace treatment of pregnancy, although pregnancy itself is not a disability under the ADA, pregnancy-related impairments may nonetheless qualify as disabilities for purposes of the ADA. This may lead to an employer being required to provide reasonable accommodations, such as a leave of absence. However, an employer may not compel an employee to take leave because she is pregnant or prohibit an employee from returning to work for a set length of time after childbirth. Furthermore, employer policies that do not facially discriminate on the basis of pregnancy may violate the PDA if they impose significant burdens on pregnant employees that cannot be supported by a sufficiently strong justification.

For further details about accommodations for pregnancy under the ADA, see Disabilities (ADA): Federal.

In addition, because male employees are entitled to an equal right to take leave to be with their newborn children, an employer must ensure that it permits male employees with a newborn child the same rights to childcare leave as nondisabled new mothers. To that end, maternity leave policies should distinguish between pregnancy-related disability leave, which ends when the employee's doctor says that a mother is medically fit to return to work, and parental or childcare leave, which an employer must provide to both female and male employees for equal amounts of time. Spouses working with the same employer generally are jointly entitled to split the full amount of parenting leave.

Adoption leave. Some state laws require an employer to grant the same amount of leave for the adoption of a child as for the birth of a child. Whether an employee is eligible for adoption leave may depend on the age of the child. While some states only permit adoption leave when a child is younger than seven years old, others permit leave for adoptions of individuals up to 23 years old in certain circumstances. In some states, an employer may require certification from the adoption agency or other parties involved in the adoption process.

Although state laws generally require leave to begin on the date of the adoption placement, in some states an employee may take leave before the placement if the employee needs time off from work to complete the adoption process. Some states even allow additional leave time to employees who are traveling abroad to adopt a child from another country.

Some states require employers to permit an employee to take the maximum number of weeks of leave available in the year on a consecutive basis and they may not require an employee to take the leave on an intermittent basis. Spouses working for the same employer generally must split the full amount of adoption leave between them.

State laws on adoption leave may also apply to the placement of a child in foster care.

Paid family leave. Some states have enacted paid family leave benefits laws that generally entitle employees to benefits for several weeks, equal to a percentage of their pay, when they take leave:

  • To care for a family member with a serious health condition;
  • To bond with a newborn baby or a newly adopted or fostered child; or
  • For an exigency related to a family member's active military service.

Some states include the benefit as part of their disability insurance programs and fund it through contributions deducted from employees' after-tax wages. However, some programs are funded by an employer payroll tax.

Garden Leave

Garden leave is very popular in the UK, and it is slowly gaining popularity in the US. When an employee is on garden leave, the employer continues to compensate the employee so he or she can "tend to his or her garden." The employee technically remains employed and is paid his or her salary and benefits for a specified period of time (typically a few weeks or months), but no longer provides services to the employer except for occasional consultation if needed. There are no federal or state laws that require garden leave. But see Other Leaves: Massachusetts.

The benefits of garden leave for an employer include that the employee:

  • May not work for or provide services to a competing employer;
  • May not solicit the employer's customers or employees;
  • May not access the employer's confidential or sensitive information; and
  • Must be available if the employer needs assistance with transitioning tasks and responsibilities.

One of the obvious costs associated with garden leave is that individuals are paid their salaries and benefits until the end of the garden leave period but are not providing regular services to the employer. Therefore, an employer that wishes to institute garden leave for one or more employees should evaluate whether garden leave is an effective and cost-efficient means of achieving the employer's goals.

Garden leave vs. noncompete agreements. Garden leave is different than a noncompete agreement. By signing a noncompete agreement, an employee usually agrees not to compete with an employer for a certain time period after the employment relationship ends, and the employee is not usually paid an additional amount in return once the employment relationship ends.

On the other hand, garden leave is in effect during the employment relationship, not after it.

Garden leave can be a valuable tool if an employee did not sign a noncompete agreement, but there is still a need to protect the company's customer relationships, trade secrets or other legitimate interests. However, garden leave may be used in conjunction with a noncompete agreement.

In states that do not recognize noncompete agreements (e.g., California), an employer that uses garden leave agreements as an alternative must ensure the agreements are not tantamount to unlawful noncompete agreements.

Holidays

Despite the fact that private employers are not required to give employees time off for national or state holidays, most employers do because it helps them to:

  • Compete with other employers by attracting valuable employees;
  • Improve productivity of employees who get time off without having to use PTO; and
  • Maintain employee satisfaction.

Floating holidays are also worth providing so employees can take a specified amount of time off for any reason. Floating holidays can be especially useful when an employee's religious practices or personal obligations do not align with the employer-provided holidays.

Jury Duty Leave

Both federal and state laws address an employer's treatment of jury duty leave. Under the federal Jury System Improvements Act, an employer may not coerce, intimidate, threaten or fire an employee because of jury duty service. An employer is required to treat jury duty as an approved leave and must allow all benefits to continue to accrue during the jury duty leave. The federal law does not require an employer to provide paid leave for employees called to jury duty.

In most states, an employer can be held civilly or criminally liable if it terminates, discriminates or retaliates against an employee because of jury duty. Most state laws do not require an employer to pay an employee for time spent serving on a jury, but some states do encourage employers to do so as a goodwill gesture. Some states require an employer to compensate employees at their regular base rate of pay in an attempt to avoid potential jurors missing jury duty. Further, states that require employers to provide pay for jury duty leave generally include a hardship exception.

Military Leave

Under the FMLA and the Uniformed Services Employment and Reemployment Rights Act (USERRA), an employer is required to provide both military members and their families certain types of leave. Many state laws also address these issues but often in different ways. For example, some extend the scope of coverage to include state militia members, and some increase the amount of time a military member has to apply for reinstatement with the employer.

In addition, most state laws related to leave for military family members are narrower than federal law in that they give leave to employees to spend time with their military spouse before deployment. This amount of time may be longer than under federal law.

When implementing military leave in its workplace, an employer should:

  • Publish a written policy or handbook statement;
  • Determine whether a uniform policy will be adopted or whether the rules of each state will apply on a case-by-case basis;
  • Educate managers and HR personnel about the differences between federal and state law; and
  • Consider whether leave for an employee who has a family member in the military reduces the employee's FMLA entitlement.

See How to Handle an Employee Who Is a Member of the Military; USERRA - Supervisor Briefing.

Many states and municipalities require employers to provide some form of paid sick leave to eligible employees. Under an executive order, federal law requires paid sick leave for federal contractors and subcontractors.

Sick leave plans generally provide employees with full pay for occasional, unplanned absences caused by a nonwork-related personal illness or injury. Although most private employers are not required by law to provide paid sick leave, many allow some paid time off to employees who are unable to work because they are sick or injured. The purpose of providing paid sick leave is to prevent the spread of illness in the workplace and to give employees the time they need to recover. Encouraging sick employees to stay at home may also help to prevent work errors and accidents.

Eligibility for paid sick leave is usually determined based on length of service. Employees generally accrue sick leave on a periodic basis (e.g., one sick day per month). These days are usually available to an employee upon completion of the accrual period. Paid sick leave may be capped by a formal policy at a fixed number of days per year or may be discretionary. Sick days are usually used for absences of less than one week. When sick leave benefits end, employees with extended illnesses may be eligible for short-term disability benefits.

A sick leave plan may be cumulative or noncumulative. With cumulative sick leave, employees are permitted to carry unused sick days from one year to the next up to a maximum number of days. With noncumulative sick leave, employees must forfeit any sick days credited at the beginning of the year that remain unused at the end of the year. An employer may also allow employees to cash in unused sick leave at the end of each year, upon termination of employment or upon retirement, at a pay rate determined by the employer.

While it is not unusual for an employer to continue the salary of a sick or injured employee on a discretionary basis, a formal policy stating how much paid leave is available reduces the risk of accusations of favoritism or illegal discrimination. Some employers limit the amount of paid leave for hourly (i.e., nonexempt) employees while allowing unlimited leave to salaried (i.e., exempt) employees.

When crafting a paid sick leave plan, an employer first must determine whether a state or municipal law applies to ensure the plan provisions comply with the law. In addition, an employer should:

  • Publish a written paid sick leave policy or handbook statement, if the employer is located in a state that requires such leave or if this type of leave represents an important value to the employer;
  • Set the number of days of leave to be granted each year (e.g., up to 12 days);
  • Consider variations on the number of days available, for example, based on job classification (hourly vs. salaried) or based on length of service;
  • Decide whether a new hire must complete a minimum service period (e.g., one month or 90 days) before becoming eligible to accrue or use paid sick leave;
  • Set how much paid leave an employee hired after the beginning of the year may take in the first year;
  • Decide whether employees must furnish proof of illness;
  • Decide whether paid sick leave is only to be used for personal illnesses or may also be used by employees who need to care for sick family members and, if so, define the term family member;
  • Decide whether sick leave is available for nonemergency doctor or dentist appointments;
  • Decide if unused paid sick days may be carried over into the next year, and, if so, the maximum number of days that may be carried over; and
  • Communicate notice requirements.

Pandemic Leave

A disease pandemic (e.g., H1N1, Ebola, Zika) can cause widespread and serious illnesses requiring many employees to need leave. An employer would be well-advised to plan for the risk of mass illness affecting its workforce and prepare for that possibility by taking the following steps:

  • Publish a written pandemic leave policy or handbook statement.
  • Take the following into account:
    • An employer's goal is to calm employees' fears and to assist in combating the pandemic;
    • Instruct employees with symptoms to not report to work if there is a risk of infection;
    • Consider flexible work arrangements and telecommuting; and
    • Consider liberalizing PTO and attendance policies. For example, an employer can choose not to require employees to use PTO if the workplace is closed due to a pandemic.
  • Consider whether an employee's pandemic-related injury or illness or that of a family member is a serious health condition that implicates the FMLA.
  • Consider whether an employee's injury or illness implicates the ADA, which protects applicants and employees from disability discrimination and is relevant to leaves during pandemics in the following ways:
    • Regulates an employer's disability-related inquiries and medical examinations for all applicants and employees, including those who do not have disabilities under the ADA;
    • Prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a direct threat (i.e., a significant risk of substantial harm even with reasonable accommodation); and
    • Requires reasonable accommodations for individuals with disabilities (absent undue hardship), including during a pandemic.

The Equal Employment Opportunity Commission (EEOC) provides guidance on Pandemic Preparedness in the Workplace and the ADA.

To learn more about ADA requirements concerning medical examinations and disability-related inquiries during an emergency, see Disabilities (ADA): Federal.

Personal Leave and Personal Days

Although federal law does not require an employer to provide paid or unpaid personal leave or personal days, many employers provide these benefits. Personal leave or personal days refers to short-term absences for reasons that are not covered by law or other company policies, such as family obligations, running errands or rest and relaxation to offset a particularly stressful period in the employee's home or work life. Some employees use personal days to observe religious holy days not covered on the employer's holiday calendar. Employees may also use a personal day for their children's school-related activity; however, some state laws allow employees to take off from work for this reason.

Some state laws require an employee to be paid for accrued, unused personal time upon termination.

Religious Leave

Most states have laws that prevent religious discrimination in the workplace. These laws are generally similar to federal law (Title VII), and many require an employer to reasonably accommodate an individual's religious practices or beliefs unless they would create an undue hardship on the employer's business operations. Examples of reasonable accommodations include leave time, job reassignments, voluntary shift swaps and flexible scheduling.

State laws may differ from federal law in the following ways:

  • The threshold number of employees for coverage may be higher or lower than the 15 employees required to trigger federal protection; and
  • While many state laws forbid religious discrimination, not all explicitly require an employer to make reasonable accommodations as federal law requires.

Employers often received employee requests for time off to observe a religious holiday that falls on a scheduled workday. When addressing the issue of religious leave, an employer should:

Sabbaticals

Some employers offer extended leaves, or sabbaticals, which may be paid or unpaid. A typical sabbatical may last anywhere from two months to two years.

Sabbaticals usually allow an employee to pursue an opportunity for professional development, such as writing a book or traveling for professional research, or to prevent career burnout by employees who would be very difficult to replace. Sabbaticals are more common among academic institutions, think tanks and large corporations with highly skilled workers, such as consultants and high-tech, financial and accounting employees. Employers often require an employee to have completed a certain number of years of service (e.g., seven years) before qualifying for a sabbatical.

Sabbaticals are a recruiting, retention and motivation tool for employers. They also create training and professional development opportunities for the co-workers who cover for the employee who is away.

An employer should consider the following tips when crafting a sabbatical program:

  • Publish a sabbatical policy;
  • Determine the criteria an employee must meet in order to be eligible for a sabbatical;
  • Provide examples of how a sabbatical may be used;
  • Explain the procedure for requesting a sabbatical, and create an application form;
  • Determine the maximum length of a sabbatical;
  • Determine whether the sabbatical will be paid; and
  • Determine how the provision and accrual of employee benefits will be handled during the sabbatical.

School Activity and Visitation Leave

Although there is no federal law specifically on point, some states require employers to provide leave for parents and guardians to attend their children's school-related activities. However, some of these laws also apply to childcare facilities and activities. By law, some employers are entitled to up to 40 hours per calendar year, while some employers are entitled to considerably less time (e.g., up to eight hours per school year). Most state laws require an employee to provide a certain amount of notice prior to taking the leave.

Although none of the state laws require that the leave be paid, most states protect an employee's benefits and require that the leave not affect the employee's entitlement to accrue benefits or seniority. These laws also provide that an employer may not terminate or otherwise discriminate against employees for exercising the right to take leave. In addition, most states do not provide penalties for failure to grant leave.

If the employer is located in a state that requires such leave or anticipates regularly encountering this issue, the employer should:

  • Publish a written policy or handbook statement.
  • Address whether the employer will allow partial-day absences. Note, however, that because the FLSA has specific requirements on deducting exempt employees' pay, an employer should make sure that it does not make pay deductions for partial-day absences of an exempt employee in violation of the FLSA.
  • Consider making written advance notice a requirement. An employer may want to consider using a standard form for requesting time off. Because school-related activities (e.g., parent-teacher conferences, school plays) are often set months in advance, an employer should remind employees to check their children's school calendars and communicate their plans with their supervisors to minimize disruptions to the workforce.
  • Consider rare circumstances in which such leave might run concurrently with the FMLA, such as when an employee takes time to enroll a newly adopted child in school, allowing an employer to reduce an employee's 12-week FMLA leave entitlement.

Short-Term and Long-Term Disability Leave

Employers offer short-term and long-term disability leave to provide wage replacement for employees who cannot work because of a disability, often when the employee does not have enough sick leave or does not want to exhaust all available sick days. Disability leave usually runs concurrently with any leave entitlements mandated by state or federal law.

An employer may provide wage replacement for employees through a self-funded plan or by contracting with an insurance company. In a few states, employers and/or employees pay contributions for temporary disability insurance benefits.

An employer should provide clear instructions to employees on how they may qualify for short- or long-term disability benefit payments. An employer must follow federal law with respect to notice requirements if it contracts with an insurer to provide benefits.

Suspensions

A suspension is a form of leave that can be paid or unpaid. A punitive suspension may be used as a form of discipline when an employee has been found guilty of wrongdoing. In a suspension pending an investigation, an employer suspends an employee when there is an allegation of the employee's misconduct while the employer investigates the allegation and determines the proper course of action.

When using suspensions, an employer should be sure to take the following actions:

  • Publish a written policy on suspensions;
  • Clearly communicate the purpose of any suspension; and
  • Take all steps needed to conduct a timely investigation.

Under some states' laws, a suspension without a specified duration is considered to be a termination of employment, in which case the employer is required to pay final wages to the employee. To avoid an unintended termination, an employer should set a definite time for the suspension and revisit it as needed.

Voting and Election Leave

Most states require a private employer to allow its employees to take time off to vote, which may vary from one hour to three consecutive hours in a workday. However, some states recognize an exception from providing leave if the employee has two or more consecutive nonwork hours in which to vote (either between the time the polls open and the beginning of the employee's regular work shift, or between the end of the work shift and the close of the polls). Additionally, under state law, an employer may:

  • Specify the hours an employee may be absent to vote;
  • Require the employee to provide reasonable notice to the employer of the need for time off to vote; and
  • Require proof that the employee voted.

Most of these state laws impose monetary or criminal penalties (e.g., misdemeanor) on an employer that denies an employee time off to vote or penalizes the employee in some way or reduces his or her pay for the absence.

Appointed election officials. A few states also permit an appointed election official to take time off from work without penalty to work on election days (e.g., at the polls or other election-related sites). Some states permit the employer to require the employee to provide documentation affirming the employee's appointment plus seven days' advance notice of the anticipated absence from work.

The following tips will help an employer to properly implement voting leave:

  • Publish a written voting leave policy or handbook statement.
  • Consider state voting leave laws, including addressing whether the voting leave handbook statement should be state-specific.
  • Determine whether leave will be paid or unpaid. Whether the state requires an employer to offer its employees a certain amount of time to vote may factor into an employer's decision to pay for that time off.
  • Require reasonable, advance notice of an employee's intention to take time off to vote before election day and inform employees how many days' notice they must give.
  • Define the supervisor's role by determining whether he or she has discretion to permit or deny time off to vote.
  • Determine whether an employee is required to provide proof, and what kind of specific proof, that he or she voted. An employer may prefer to request proof only if it suspects the employee has misused the voting leave benefit.
  • Consider authorizing additional, unpaid time off if an employee requests it for a legitimate reason, and determine what is the best time of day to permit the employee to take this extra time off based on staffing needs.

Executive Order 13706 and implementing regulations mandate paid sick leave for employees of federal contractors. New contracts must provide that employees may earn at least one hour of paid sick leave for every 30 hours worked. The Executive Order applies to the following types of contracts:

  • Procurement contracts for construction covered by the Davis-Bacon Act;
  • Contracts for services covered by the Service Contract Act;
  • Contracts for concessions, including those excluded by Department of Labor regulations; and
  • Contracts or contract-like instruments with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents or the general public, if the wages of employees under these contracts are covered by the Davis-Bacon Act, the Service Contract Act or the FLSA, including employees who are exempt from the FLSA's minimum wage and overtime provisions.

Private sector entities that enter into new federal contracts may also be subject to the Executive Order.

Qualifying Reasons for Leave

Under the Executive Order, employees may use paid sick leave for their own or an eligible family member's physical or mental illness, injury or medical condition, or to obtain a diagnosis, care or preventive care from a health care provider, as well as for absences resulting from domestic violence, sexual assault or stalking (e.g., to obtain additional counseling, relocate, seek assistance from a victim services organization or take related legal action).

Eligible family members include:

  • Children;
  • Parents;
  • Spouses;
  • Domestic partners; and
  • Any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

Leave Accrual

An employee may accrue up to seven days (56 hours) of paid sick leave per year, and may carry unused, accrued leave over to the next year.

An employer is not required to pay out unused, accrued sick leave upon termination. If an employee is rehired by a covered contractor within 12 months of being separated from employment, the contractor must reinstate any unused, accrued leave.

Employee Notice Requirements

An employee may request paid sick leave orally or in writing and must state the expected duration of the leave. The employee must make the request at least seven calendar days in advance if the need for leave is foreseeable, and as soon as is practicable if the need for leave is unforeseeable.

Certification

A contractor may require certification of the need for leave only in the case of absences of three or more consecutive workdays. The employee must provide the certification within 30 days of the first day of leave. The final rules permit a contractor to require an employee to provide documentation from "an appropriate individual or organization with the minimum necessary information establishing a need for the employee to be absent from work."

A contractor may not disclose verification information and must maintain confidentiality about domestic violence, sexual assault and stalking, unless the employee consents to or the law requires disclosure.

Employer Notice Requirements

A contractor must post a notice of the paid sick leave requirements in a prominent, accessible place where employees can readily see it.

A contractor that customarily posts employee notices electronically may also post the sick leave notice requirements electronically. The contractor must display the electronic posting prominently on any external or internal website it maintains and customarily uses for notices to employees about terms and conditions of employment.

Prohibited Actions

A contractor may not:

  • Condition the use of paid sick leave on an employee finding a replacement worker; or
  • Interfere with or discriminate against an employee for:
    • Taking or attempting to take paid sick leave; or
    • Asserting or assisting another employee in asserting any right or claim related to the Executive Order.

Interaction With Other Laws and Policies

Paid sick leave required by the Executive Order is in addition to applicable obligations under the Service Contract Act or Davis-Bacon Act. A contractor may not receive credit toward the prevailing wage or fringe benefit obligations under either of these laws for any paid sick leave it provides.

A contractor's existing paid leave policy made available to all covered employees satisfies the requirements of the Executive Order if the amount of paid leave is sufficient to meet the Order's requirements, and leave may be used for the same purposes and under the same conditions as described in the Order.

The Executive Order does not supersede any applicable federal or state law or collective bargaining agreement that provides greater paid leave rights than those provided for in the order.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

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