Other Leaves: Florida
Federal law and guidance on this subject should be reviewed together with this section.
Author: Kamilah L. Perry, Phelps Dunbar, LLP
- There are various types of leave that may be available to an employee in Florida. See Leaves of Absence.
- Florida does not have a state family and medical leave law applicable to private employers. See Family and Medical Leave.
- In Florida, victims of domestic violence or sexual violence are entitled to employment leave to obtain medical care and/or mental health counseling. See Domestic Violence Leave.
- A Florida employer may not terminate an employee for an employee's jury service. See Jury Duty Leave.
- An employer may not terminate an employee based on the nature of his or her testimony or employment absences resulting from compliance with a subpoena. See Witness Duty Leave.
- Florida law prohibits an employer from terminating or otherwise discriminating against any individual for taking leave to serve in the US armed forces. See Military Leave.
- A covered Miami-Dade County employer must provide an eligible employee with domestic violence, family and medical and jury duty leave. See Local Requirements.
Leaves of Absence
There are various types of leave that may be available to an employee in Florida. To the extent that applicable federal, state or local laws conflict, an employer should apply the provisions that provide the greatest benefits and protections to the employee.
An employer should remain alert to the various types of leave available and take care to track employees' leaves of absence, including:
- The date the leave begins;
- The type of leave; and
- The expected return date.
An employee who exercises leave rights is not protected from discipline for legitimate reasons that are unrelated to the leave and that are not otherwise prohibited by law.
If an employer must discipline an employee who has exercised his or her leave rights, it should carefully document the reasons for the discipline, review past application of the rule (to ensure the policy is being enforced evenhandedly), and consider whether to seek the advice of counsel before imposing the discipline.
Family and Medical Leave
Florida does not have a state family and medical leave law applicable to private employers. However, a Florida employer with 50 or more employees is likely required to adhere to the federal Family and Medical Leave Act (FMLA).
A Florida employer with employees in Miami-Dade County may be subject to that county's family and medical leave law. See FMLA: Florida.
Domestic Violence Leave
An employer with 50 or more employees must provide leave to employees, who have been employed for three or more months, who are victims of, or have family or household members that are victims of, domestic or sexual violence. +Fla. Stat. § 741.313(3).
An eligible employee is allowed to use domestic or sexual violence leave to:
- Receive medical care and/or mental health counseling;
- Receive services from a victim-services organization, such as a rape crisis center;
- Address secured housing issues;
- Receive legal assistance; or
- Seek protection from the court against domestic violence, dating violence or sexual violence.
An employer must allow an employee to take up to three working days of such leave in any 12-month period. This leave may be with or without pay, at the discretion of the employer. An employee seeking leave must provide his or her employer with advance notice of the need for leave unless doing so would create an immediate danger to the health and safety of the employee, the family or household member.
An employee should exhaust all available annual or vacation leave, personal leave and sick leave, if applicable, unless the employer waives this requirement. +Fla. Stat. § 741.313(4).
An employer is not allowed to interfere with, restrain or deny the employee the right to exercise any right under this law, and are also specifically prohibited from terminating, demoting, suspending, retaliating, or engaging in any other form of discrimination against the employee for exercising his or her statutory rights under the law. +Fla. Stat. §741.313(5).
A covered employer should consider including a domestic violence leave policy in its handbook to educate employees, including supervisors, about the availability of domestic violence leave and to show its compliance with Florida law.
An employer in Miami-Dade County may also be subject to that county's domestic violence leave law. To the extent that state or local law conflict, an employer should apply the provisions that provide the greatest benefits and protections to the employee. For information on Miami-Dade's domestic violence leave law see Miami-Dade County Domestic Violence Leave.
Jury Duty Leave
An employer may not terminate employees who have received a summons to serve, or who have accepted to serve, on any jury in Florida for any cause, when the termination is related to the nature or length of such service.
If an employer has employees in Miami-Dade or Broward County the employer may also be subject to the local jury duty leave requirements. To the extent that state or local law(s) conflict, an employer should apply the provisions that provide the greatest benefits and protections to the employee. For information on jury duty leave requirements see Jury Duty: Florida.
Witness Duty Leave
Florida protects employees who testify in a judicial proceeding, and prohibits an employer from terminating an employee based on the nature of the person's testimony or employment absences resulting from compliance with a subpoena. The law does not apply to employees who have not actually been served with a subpoena requiring testimony, and only protects against actual termination, and not any other adverse employment actions, such as discipline or reduction in wages. If an employee sues an employer because of a violation of this law, the court may award attorney fees and punitive damages, in addition to actual damages suffered by the employee. +Fla. Stat. § 92.57.
While Florida law does not require that an employer provide an employee with a leave of absence to vote, a Florida employer with one or more employees may not terminate or threaten to terminate any employee for voting or not voting in any state, county or municipal election, for any candidate or measure submitted to a vote. +Fla. Stat. § 104.081.
Florida law prohibits a private employer from terminating or otherwise discriminating against any individual for service in the armed forces. For more information on military leave, please see USERRA: Florida.
Civil Air Patrol Leave
An employer with 15 or more employees must provide eligible employees with up to 15 days of unpaid leave per year for the purpose of participating in a Civil Air Patrol training or mission. For more information on civil air patrol leave, please see USERRA: Florida.
Employers should be aware that certain leaves are protected by state law and therefore it should train its supervisory employees not to take action against an employee because he or she took leave or indicated that he or she may take the leave in the near future. See Training and Development: Federal.
Broward County Jury Duty Leave
Any employer that is located or does business in Broward County must permit a full-time employee to take a leave of absence of up to five days for jury duty. For more information on jury duty leave in Broward County, please see Jury Duty: Florida.
Miami-Dade County Domestic Violence Leave
An employer with 50 or more employees working in Miami-Dade County for each working day during each of 20 or more calendar work weeks in the current or preceding calendar year must provide eligible employees with up to 30 days of unpaid domestic violence leave during any 12-month period.
To be eligible for domestic violence leave, an employee must:
- Be continually employed in Miami-Dade County for at least 90 days;
- Work at 308 hours or more during the previous 90-day period; and
- Exhaust all paid vacation and personal leave.
Domestic violence leave may be taken for the following qualifying reasons:
- To obtain medical and dental treatment for conditions resulting from domestic or repeat violence, including treatment for the employee's dependent children;
- To obtain legal assistance relating to domestic or repeat violence, including criminal prosecution and protective orders as well as divorce, child custody and child support;
- To attend court appearances relating to domestic or repeat violence;
- To attend counseling or support services for the employee or the employee's dependent children; or
- For any other arrangements necessary to provide for the employee's safety and well-being.
Domestic violence leave may be taken intermittently or on reduced schedule basis. If an employee requests intermittent leave or reduced leave that is foreseeable (planned), an employer may require the employee to transfer temporarily to an available alternative position for which the employee is qualified and that has equivalent pay and benefits and better accommodates recurring periods of leave.
An employer may require an employee to provide a certification of the need for domestic violence leave from a health care provider, attorney of record, counselor, law enforcement agency, clergy, domestic violence advocacy agency, domestic violence center or domestic violence shelter. An employer must accept the certification if it states that the employee is being subjected to domestic or repeat violence and needs time off to attend to one of the qualifying reasons listed above. +Miami - Dade County, Florida Code of Ordinances Sec. 11A-62.
An employer can, and should, request that an employee periodically report in to the employer on his or her status and intention to return to work.
The taking of domestic violence leave may not result in the loss of any employment benefits accrued prior to the date on which the leave began. During any period of domestic violence leave, an employer must maintain group health coverage at the same level and under the same conditions as if the employee had not taken leave.
An eligible employee who returns from domestic violence leave must be restored to the position he or she held prior to leave or be placed in an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment. A reinstated employee is not entitled to accrue seniority or employment benefits during a period of domestic violence leave. The employee is not entitled to any right, benefit or position, unless he or she would have been entitled to it had he or she not taken domestic violence leave.
A covered employer should consider including a domestic violence leave policy in its handbook to educate employees, including supervisors, about the availability of domestic violence leave and to show its compliance with Miami-Dade County law.
Miami-Dade County Family and Medical Leave
An employer with 50 or more employees in Miami-Dade County for 20 or more weeks in the current or preceding year must provide family and medical leave to eligible employees. For more information on family and medical leave in Miami-Dade County, please see FMLA: Florida.
Miami-Dade County Jury Duty Leave
An employer that is located or does business within Miami-Dade County and has 10 or more employees who are regularly scheduled to work at least 35 hours per week must pay an employee his or her regular salary, draw or compensation for any absence relating to jury duty, provided that the employee provides his or her immediate supervisor with a copy of the summons at least five working days before jury duty services. For more information on jury duty leave in Miami-Dade County, please see Jury Duty: Florida.
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