Overview: Employers have an obligation to comply with various federal, state and local leaves of absence laws. Many employers go beyond the law and voluntarily offer leaves (such as bereavement, pandemic or paid sick leave). These additional leaves may be effective for staying competitive in attracting new talent, increasing employee morale or retaining employees. Multistate employers may offer leaves that are not legally required in order to create uniformity (by providing all employees with the same benefits) and for administrative and morale reasons.
When applicable, employers must comply with the federal Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), Pregnancy Discrimination Act (PDA) and Title VII when it handles leave requests and/or creates leave policies. Employers must also always check their state and local laws when managing leaves of absence. Many state laws differ from federal law (e.g., states may require paid leave or may expand the scope of leave to care for family members that federal law does not cover, such as domestic and/or same-sex partners) - and many states differ from one another. For example, some states protect an employee's right to accept another employment opportunity while on approved leave (i.e., moonlighting) while other states specify that an employer may prohibit outside employment that creates a conflict of interest. Employers need to be careful that their leave policies comply with the applicable law that creates the greatest degree of protection for employees.
Employers must always be aware of the risk of legal claims for interference, retaliation and discrimination when managing leaves. The best way for an employer to reduce risk is to ensure that all policies are enforced in a consistent manner across the organization.
Trends: Federal law does not require paid sick leave; however, there is a push for the federal government to enact such a law. Employers in California, Connecticut, Massachusetts and Oregon, and several municipalities (e.g., the District of Columbia, New York City, San Francisco and Seattle) are required to provide eligible employees with paid sick leave, though the requirements for leave vary. Many other jurisdictions are considering following this trend.
The Equal Employment Opportunity Commission (EEOC) is targeting employers that have a policy calling for the automatic termination of an employee after the employee has been absent for a certain period of time. The EEOC believes that such policies do not properly meet the employer's obligation to engage in the ADA's interactive process to determine if a reasonable accommodation is necessary. Employers must conduct an individualized case-by-case analysis of the employee's situation and the employer's obligation to reasonably accommodate.
Author: Melissa S. Burdorf, JD, Legal Editor
Updated to include the forthcoming requirement to pay contributions to fund benefits under the Universal Paid Leave Amendment Act of 2016.
Updated to reflect a DOL Opinion Letter regarding substitution of paid leave for unpaid FMLA leave.
As mandated by the District of Columbia, Department of Employment Services, covered employers must post the District of Columbia Paid Leave Notice.
Updated to reflect a change in the first quarterly reporting due date for paid family and medical leave premiums.
Updated to include information on the forthcoming manuals: Types of Employers (State Sections).
Westchester County, New York employers with fewer than five employees that seek to educate employees about the availability of sick leave and to show their compliance with Westchester County's Earned Sick Leave Law should consider including this model policy statement in their handbook.
Westchester County, New York employers with five or more employees that seek to educate employees about the availability of paid sick leave and to show their compliance with Westchester County's Earned Sick Leave Law should consider including this model policy statement in their handbook.
Updated to reflect proposed regulations that would update and revise the Fair Labor Standards Act (FLSA) overtime exemption requirements.
HR guidance on various intersecting federal and state laws addressing employee leaves of absences.