Employee Leave Basics

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Many employers offer some mix of paid vacation, sick or personal leave. Federal, state, and sometimes local laws require employers to provide paid or unpaid leave in certain situations.

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The Family and Medical Leave Act

Depending on the reason the employee takes the leave, employee protections under the federal Family and Medical Leave Act (FMLA) may kick in. The FMLA applies to employers with 50 or more employees working within 75 miles over 20 weeks the previous year. To be eligible for leave, employees must have worked for the employer for at least one year. They also have to have worked at least 1250 hours in the twelve months before taking leave.

Employers should develop their own FMLA policy. The employer FMLA policy governs:

  • How employees request leave,
  • How the employer processes that request, and
  • Whether employees must substitute employer-provided paid leave for the FMLA’s unpaid leave.

FMLA leave is available:

  • To care for a new child, whether for the birth, the adoption, or placement of a child in foster care;
  • To care for a seriously ill family member, including a spouse, son, daughter, or parent;
  • To recover from a worker’s own serious illness, including incapacity due to pregnancy and prenatal medical care;
  • To address qualifying exigencies arising out of a family member’s deployment; or
  • To care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (may be up to 26 weeks).

Employees aren’t required to ask for FMLA by name. Simply requesting leave is enough to trigger the employer’s responsibility to investigate. Not recognizing legitimate leave requests is the most common FMLA employer trap.

Employers must determine eligibility within 5 days of receiving the request. Denials must be in writing. If approved, employers must provide in writing the employee’s FMLA rights and responsibilities during leave.

To be eligible, the employee or family member must have a serious medical condition as defined by FMLA regulations. Employers may request certification of the condition from the employee’s health care provider. Employers may request a new certification as often as every 30 days.

Parental FMLA Leave

All new parents eligible for FMLA leave can take that leave whatever their sex. Unless tied to post-birth physical recovery, employers cannot provide more maternity or FMLA leave to women. Recently, men have won large settlements for receiving less time off than women following a child’s birth.

Note: The U.S. Department of Labor has FMLA forms for employers to use in most common situations. They are available at https://www.dol.gov/whd/fmla/forms.htm.

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Leave as accommodation

Some employees may qualify to take unpaid leave as an accommodation
under the Americans With Disabilities Act (ADA). In some cases,
employees may exhaust their 12-week FMLA entitlement and still need time
off. Employers who terminate employees at this juncture without
considering the employee’s ADA rights may end up in court.

Other types of leave

Many states and cities have leave laws that mandate job-protected leave
for a variety of reasons including:

  • Paid family and maternity leave;
  • Paid sick leave;
  • Paid disability leave;
  • Parental leave related to a child’s school activities;
  • Disaster leave that protects requires employers to allow first
    responders to assist in disaster recovery;
  • Safe leave that protects employees suffering domestic violence; or
  • Workers compensation laws that govern workers recovering from
    on-the-job injuries.

Employers should consult with counsel to determine which leave laws
apply to them. Then employers should develop a comprehensive leave
policy that incorporates the benefits and requirements of all pertinent
laws.

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