Other Leaves: Montana
Federal law and guidance on this subject should be reviewed together with this section.
Authors: Jason Ritchie and William Dabney, Holland & Hart LLP
- There are several types of leave that may be available to an employee in Montana. See Leaves of Absence.
- Montana does not have a state family and medical leave law applicable to private employers.See Family and Medical Leave.
- An employee may be entitled to take unpaid leave to prepare for or attend a criminal justice proceeding. See Crime Victim Leave.
- Montana law provides extended protections to members of the National Guard returning from state active duty. See Military Leave.
- Employers of employees elected or appointed to a public office in the city, county or state must allow the employee to take a leave of absence, not to exceed 180 days per year, while the employee is performing public service. See Public Official Leave.
Leaves of Absence
There are various types of leave that may be available to an employee in Montana. 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
Montana does not have a state family and medical leave law applicable to private employers. However, a Montana employer with 50 or more employees is likely required to adhere to the federal Family and Medical Leave Act (FMLA).
An employer with one or more employees must grant a reasonable leave of absence for pregnancy. When deciding what is reasonable, an employer must apply standards at least as inclusive as those applied to requests for leaves for any other valid medical reason. For more information on pregnancy leave, generally, please see FMLA: Montana.
In situations where an employee suffers a disability because of pregnancy, it may be necessary for an employer to provide additional leave than what is normally required. For more information on pregnancy disability, please see Disabilities (ADA): Montana.
Crime Victim Leave
An employer may not terminate or discipline a victim or a member of a victim's family for participation at a prosecuting attorney's request in the preparation for, or attendance at, a criminal justice proceeding.
A member of the victim's family includes the victim's spouse, child by birth or adoption, stepchild, parent, stepparent, or sibling, but does not include a person who is accountable for the crime or accountable for a crime arising from the same transaction.
An employer should consider including a crime victim leave policy in its handbook to educate employees, including supervisors, about the availability of crime victim leave and to show its compliance with Montana law.
Montana law provides extended protections to members of the National Guard of Montana or any other state returning from state active duty. An employer may not discriminate against any individual because of their membership in the National Guard of Montana or any other state. For more information on military leave, please see USERRA: Montana.
Public Official Leave
An employer of employees elected or appointed to a public office in the city, county or state must allow the employee to take a leave of absence, not to exceed 180 days per year, while the employee is performing public service.
An employer that employs 10 or more employees must restore an employee to their job with the same seniority, status, compensation, hours, locality and benefits as existed immediately prior to their leave of absence for public service, as long as the employee provides notice of their intent to return to work within 10 days after the completion of service (unless the employee is unable to do so because of illness or disabling injury certified to by a licensed physician).
A covered employer should consider including a public official leave policy in its handbook to educate employees, including supervisors, about the availability of public official leave and to show its compliance with Montana law.
Paid Time Off
A private employer is not required to provide paid vacation leave, paid sick leave or other paid time off (PTO).
If an employer offers paid vacation time any accrued but unused paid vacation time is considered wages and must be paid upon an employee's termination.
If an employer offers paid sick time or PTO, it must be paid upon termination if the employer's policies provide for such payment.
For more information on payment of accrued leave time, please see Payment of Wages: Montana.
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.
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