Other Leaves: South Dakota
Federal law and guidance on this subject should be reviewed together with this section.
Author: Gloria Ju
- There are various types of leave that may be available to an employee in South Dakota. See Leaves of Absence.
- South Dakota does not have a state family and medical leave law applicable to private employers. See Family and Medical Leave.
- An employee may not be terminated for serving jury duty. See Jury Duty Leave.
- An employer must provide an employee with two consecutive hours to vote under certain circumstances. See Voting Leave.
- An employer must provide a temporary leave of absence without loss of job status or seniority to any employee who is a member of the legislature so that the employee can perform official legislative duties. See Legislative Leave.
- Any state resident who is a member of any state's National Guard who is ordered to active duty service by the governor of that state or the US president is afforded the same protections afforded to persons serving on federal active duty. See Military Leave.
Leaves of Absence
There are various types of leave that may be available to an employee in South Dakota. 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
South Dakota does not have a state family and medical leave law applicable to private employers. However, an South Dakota employer with 50 or more employees is likely required to adhere to the federal Family and Medical Leave Act (FMLA).
No employer may provide for child care leave that discriminates on the basis of sex. For more information on pregnancy or child care leave , please see FMLA: South Dakota.
Jury Duty Leave
An employee may not be terminated or suspended for serving as a juror in any state court. For more information on jury duty leave, please see Jury Duty: South Dakota.
On the day of any election held within the state, including a primary election, an employee is entitled to be absent from work for two consecutive hours between the time the polls open and close in order to vote, if the employee does not have a two-hour period off from work during the time the polls are open. The employer may specify the hours during which employees may be absent to vote.
If an employee takes time off from work to vote, the employee cannot be penalized or have a deduction made to their usual salary or wages due to the absence. An employer who refuses to allow an employee with time off to vote or who penalizes or reduces an employee's wages because the employee exercises their right to vote is guilty of a Class 2 misdemeanor.
An employer should consider including a voting leave policy in its handbook to educate employees, including supervisors, about the availability of time off to vote and to show its compliance with South Dakota law.
An employer must provide a temporary leave of absence without loss of job status or seniority to any employee who is a member of the Legislature so that the employee can perform his or her official duties as a member of the Legislature. It is the employer's discretion whether or not to pay an employee for such leave.
It is considered a violation of public policy for an employee and an employer to enter into any agreement that includes a condition to employment, promotion or benefit enhancement that effectively restricts the employee's right to serve in the Legislature. +S.D. Codified Laws § 2-4-1.1.
An employer should consider including a legislative leave policy in its handbook to educate employees, including supervisors, about the availability of legislative leave and to show its compliance with South Dakota law.
Any resident of South Dakota who is a member of any state's National Guard who is ordered to active duty service by the governor of that state or the US president are afforded the same protections afforded to persons serving on federal active duty by the federal Uniformed Services Employment and Reemployment Rights Act and the Servicemembers Civil Relief Act of 2003. For more information on military leave, please see USERRA: South Dakota.
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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