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:
FMLA leave is available:
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:
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
HR Specialist Summit
September 4-6, 2019
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