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Emerging Legally Protected Absences You Can’t Overlook

Published on 8/23/2017 12:00:00 AM
New Types of Legally Protected Absences for Employers to Know.

When it comes to job-protected employee leave, most discussions center around the Family and Medical Leave Act (FMLA). That federal law permits eligible employees to take unpaid leave for a variety of qualified reasons, including a serious health condition (their own or a family member’s), the birth or adoption of a child, and military caregiver service. The law, which intends “to balance the demands of the workplace with the needs of families,” casts a wide net, but it doesn’t capture every possible absence.

These days, you’ll need to look beyond the FMLA to be certain you’re covering all the bases with legally protected absences. Recent trends in state (and local) legislation mean more situations are covered than ever before — and it’s up to you to be aware of them and how they impact your business.

Protected Absences at the S​tate Level

Depending on your state, employee leave coverage may differ from the federal FMLA in a few key ways:

Apply to smaller employers (the FMLA affects employers with 50 or more employees)
Less stringent requirements for employee eligibility
Expand the definition of a serious health condition
Apply to individuals other than immediate family members (as defined by the FMLA)
Require paid leave instead of unpaid leave
Provide leave for additional reasons

This last bullet is especially important. You’ll want to check the specifics for your state, but the situations that may be covered beyond the scope of the FMLA include:

School activities related to a child’s educational advancement, including parent-teacher conferences and counseling sessions (not plays and sporting events)

Jury duty or court hearings

Time off to address domestic violence, stalking or sexual assault, including attending criminal proceedings, getting orders of protection or seeking medical care

Blood, marrow or organ donation

Accompanying a child or elderly relative to routine medical or dental appointments

Time off to vote

Emergency duty as a volunteer firefighter, reserve peace officer or disaster/rescue worker

In most cases, these more narrowly defined absences fall under legislation called Small Necessities Leave. Depending on the state, employees are entitled to a certain number of hours above and beyond the 12 weeks of FMLA coverage. Allowable time off may range from an additional 8 hours annually for Illinois workers to 40 hours in California.

Keep in mind, however, that you can require employees to use any accrued paid time off (PTO) before taking small necessities leave. It’s also a good idea to include language in your workplace attendance policy outlining these legal absences and your internal notification and approval process.

Expand Your Awareness of Acceptable Absences

Understanding protected absences is just one aspect of managing employee attendance. For a more in-depth discussion of the steps you can (and can’t) take to reduce chronic or disruptive employee absenteeism, watch our free webinar, How to Stop Excessive Absenteeism from Undermining Your Business.

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Ashley Kaplan, Esq.
Presented by: Ashley Kaplan, Esq.,
Senior Employment Law Attorney
This insightful webinar will summarize the mandatory posting changes for 2017 and what they mean for your business.
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