Mandatory Employee Leave: An In-Depth Analysis of State and Local Laws

Is there a place to find city, state and local laws on leave laws?

No, not really an all-encompassing list if that is what you mean. States and cities may have information online somewhere that can help you out and of course, the laws themselves can generally be found online too with a good deal of searching. The department of labor also has a lot of information you can find about FMLA leave requirements.

What states require paid sick leave?

So right now, there are 11 states I believe that require some kind of sick leave. Those states include Arizona, California, Connecticut, Maryland, Massachusetts, Michigan, New Jersey, Oregon, Rhode Island, Vermont, and Washington. It may depend on the size of the employer whether this leave needs to be paid or not and how much time must be provided. So it is very important to check the actual law itself for the specific requirements that may apply to your business. Besides states, several cities are also enacting their own paid sick leave laws like Chicago, Minneapolis/St. Paul, MN, New York City, Los Angeles, Oakland, San Francisco to name a few. Again, this isn’t an exhaustive list. So please check your state and local laws.

Do you think that all states will start requiring paid sick leave?

So obviously, there is no way to know what the future holds for sure. And while we may never see all states require paid sick leave unless federally forced to, I do believe that we will see more and more states join the bandwagon as time goes on – especially if we don’t see a federal law enacted soon.

If the employee qualifies for leave under more than one policy can the leave run concurrently?

Yes, generally leave especially leave that is federally provided like FMLA leave can run concurrently with other types of leave unless the applicable law that the leave fall under explicitly says the leave cannot run concurrently. So, for example, your employee could be out on workers comp for a work-related injury or illness but also be out under FMLA concurrently. This means that the employee wouldn’t necessarily need to exhaust one leave before using the giving them in essence extra time off.

Do I have to provide extra time off once FMLA leave is exhausted as an accommodation under the ADA?

The answer to this question is maybe. Under the ADA, you have to provide reasonable accommodation as long as it does not cause undue hardship even if that means that you have to provide more time off once FMLA has been exhausted. So it really comes down to what is reasonable and would be providing that accommodation be an undue hardship? You will have to engage in the interactive process required by the ADA to determine what may be reasonable under the circumstances and what will cause an undue hardship. So how much time would be considered reasonable? It is clear that an indefinite amount of time thanks to court decisions as Courts in several jurisdictions. So someone saying they need leave but with no idea about how much time off they may need is probably not reasonable. Likewise, many courts are starting to find that typically, 4-6 weeks may also be unreasonable and more likely an undue hardship on businesses. However, every company’s needs and resources are different so you really have to take a deep look into your situation to determine what is reasonable and what may be an undue hardship.

If an employer has less than 50 employees can we still offer unpaid leave under FMLA to our employees?

Yes, absolutely. Even if you are not legally required to give a benefit, you can and depending on your situation probably should voluntarily give benefits to your employees. So in this case, we are talking about voluntarily providing unpaid leave as a benefit to your employees. Keep in mind that if you are not a covered employer meaning you do not have 50 or more employees, you can offer unpaid leave that matches the rights and benefits given under the FMLA or you could choose to provide benefits that work better for your company. What I mean by that, is under the FMLA you have to provide 12 weeks of unpaid leave for the birth or placement of a child or for a serious health condition of the employee or the employee’s family member. However, if the FMLA does not apply you can change the amount of time you offer or can even change the reasons your employees are allowed to take leave. So if you want to just allow 6 weeks of leave for childbirth only, you can do that. Also, by contrast, if you are required to provide FMLA leave, you can also choose to provide more benefits than legally required. The FMLA requirements would just be the minimum you must provide. For example, you could provide more time off than the FMLA requires if you would like.

With the Pregnancy Act - if the employee does not qualify for FMLA do I have to give them 12 weeks? We normally allow for 6-8 weeks depending on the type of delivery. All with the same benefit as the FMLA.

This answer is very similar to the answer I just provided. The Pregnancy Disability Act does not require a set amount of time off that must be provided, unlike the FMLA. This law is more about the prohibition of discrimination against employees based on pregnancy, childbirth, or related conditions. It states that employees affected by pregnancy or related conditions must be treated in the same manner as other employees who are similar in their ability or inability to work. So if an employee is temporarily unable to work due to pregnancy, an employer must treat the employee the same as any other temporarily disabled employee. For example, the employer must provide reasonable accommodation for a pregnant employee just as it would for any other disabled employee such as providing light duty, modified duty, alternative assignments, disability leave or leave without pay. So to answer this question directly, you are not required to provide 12 weeks guaranteed if the FMLA does not apply. However, you can have a policy in place that does give a set amount of time off like I just said in the last answer. If you choose not to have a set amount of time, you do have to treat a pregnant employee as you would any other disable employee so you may have to provide some leave which will vary depending on the situation as a reasonable accommodation.

Do sick leave laws require a doctor's note for the absence?

The requirements vary depending on the specific law. You will have to check the applicable law to see what kind of information you can request from your employees to prove the necessity of the leave. Again, the law just provides the minimum requirements, you can always give more rights and benefits than the minimum legally required. For example, if the law says you can request a doctor’s note for all sick day absences, your policy can be that you only require a doctor’s note for sick leave of 3 days or more.

Is it legal to have a policy to not pay out vacation balance when an employee terminates?

Generally, yes. But there are some states that do require accrued unused paid time off to be paid at the time of separation. You will need to check your applicable state and local laws for their requirements. If your state or local laws do not specifically require you to pay accrued unused paid time off then yes, you can have a policy that states that all accrued unused paid time off will be forfeited at the time of separation.

Is Vacation time qualified use to cover paid time off laws?

Again, this answer could depend on the applicable state or local law. If you already provide paid time off equal to or in excess of the required amount of time off then many laws say that is sufficient to meet the law. But to be sure, please check the applicable laws.

When is leave paid and when is it unpaid? Who decides?

The actual applicable laws themselves will dictate if the leave can be unpaid or if it must be paid. Many of the sick leave laws require the leave to be paid, however, some of the family and medical leave laws may be unpaid. If the law requires paid leave, you must provide paid leave. So you have to check the language of the law itself. Like I’ve said several times, you can always choose to provide greater rights and benefits than the law requires. If your applicable law says the leave may be unpaid, you could still choose to provide paid leave, so in essence, the employer does have some room to make choices based on their needs and resources.