Making Sense of Employee Leave Laws

08/20/08

The tangle of government regulations concerning employee leave policies is continually growing. Managers need to understand the complexities of regulations concerning family leave, medical leave, military leave, jury duty, voting and other forms of time off. There’s a veritable alphabet soup of federal laws and regulations that govern employee time-off policies. And state laws add another layer of complexity. Just keeping up with human resource regulations and court precedents around the country can be a full-time job in itself. But it’s not difficult to learn the basics.

Fundamentals
In a nutshell, employees are entitled by law to take time off from work (with or without pay) for certain reasons such as illness or injury, illness of an immediate family member, childbirth, adoption, military service or jury duty. Managers and supervisors are responsible for identifying when an employee’s absence or request for time off is “legally protected,” and must know how to respond when an employee asks for time off for a protected reason. This can be tricky, because more than one law may apply to the same absence.

By saying the wrong thing, or by treating an absence the wrong way, managers can expose themselves and their employer to serious legal liability. Make sure your managers are informed about employment laws that apply to employee absences, so innocently intended mistakes do not land you in court.

The major types of leave

• Family and medical leave: The federal Family and Medical Leave Act (FMLA) requires employers to give up to 12 weeks of unpaid leave after childbirth or adoption, or to care for an ill or injured immediate family member. It applies only to companies that employ at least 50 people within a 75-mile radius. But many states have similar provisions that apply to smaller businesses. You must have a clear understanding of both federal and state requirements, because courts will enforce the more stringent of the two standards.

Furthermore, the federal law defines “immediate family member” narrowly, requiring covered employers to provide medical leave to care for an ill parent, spouse or child. The federal law does not require you to provide leave to an employee to care for other family members, such as a sibling, grandparent, aunt or uncle, in-law or same-sex partner. But again, your state may have a broader definition of the term “immediate family member,” and require you to provide unpaid leave in these instances.

• Military leave: You must provide time off to members of the uniformed military services — including the Coast Guard and the Public Health Service Commissioned Corps — upon request, when those members are called to active duty. In most circumstances, you must rehire them after their tours are complete. You may not discriminate against them in any way, and they must receive all scheduled or normally expected seniority benefits and pay increases as if they had never left. The federal law, the Uniformed Services Employment and Reemployment Rights Act (USERRA), covers federal activations. Your state may have similar laws covering members of the National Guard when they are called by their governors to state active duty.

• Jury duty: You may not fire or penalize employees for taking jury duty, although the law generally does not require you to pay them. Some states will subject the employer to criminal prosecution for violating this law. You may have to pay salaried employees for absences of less than a week, however. Generally, you may charge their paid time off (PTO) accounts.

• Voting: State law varies, but many states require employers to provide a few hours of paid leave. Even if your state doesn’t, you generally may not punish an employee for taking time off to cast a ballot.

• Sick leave: You are not required legally to provide paid vacation or sick leave. If you do, though, you must apply the policy consistently to all employees. Depending on your state, you may have to pay employees for unused sick days.