Personnel e.bulletin – December 2014

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The Legalities of Leave
Prepared for the PHCC Educational Foundation by TPO, Inc.

What is the Universe of Leave Benefits
Human resource practices and all their associated legalities is a wide universe to explore & understand. Leave benefits can be as complicated as another universe inside HR, so let’s break it down into three categories to help make things easier:

  1. Leave required by federal law
  2. Leave governed by state law
  3. Leave governed by employers

What Leave Benefits Are Required By Federal Law?
You are required to provide leave under the Federal Family and Medical Leave Act (FMLA) if you have 50 or more employees. It entitles your employees to 12 weeks of job-protected, unpaid leave during any 12-month period for any of the following reasons:

  1. Birth and care of the eligible employee’s child, or placement for adoption or foster care of a child with the employee.
  2. Care of an immediate family member (spouse, child, parent) who has a serious health condition.
  3. Care of the employee’s own serious health condition.

FMLA requires group health benefits to be maintained during the leave as if employees were working instead of taking leave.  There is a lot of information to take in and many requirements – but there are plenty of available resources. Visit the Department of Labor’s website for a complete set of information and resources: http://www.dol.gov/dol/topic/benefits-leave/

The Americans with Disabilities Act (ADA) determined that leave is a reasonable accommodation. For example, an employee with a disability might need time off for surgery, intensive cancer treatment, rehabilitation for substance abuse, or a long period of rest following a serious injury.

An employee, whose disability also qualifies as a serious health condition, is covered under the FMLA. An employee who is unable to return to work after using up the 12 weeks of FMLA leave may be entitled to more time off as a reasonable accommodation. For example, an employee who needs a few additional weeks off to recover from surgery might be entitled to that leave as a reasonable accommodation.  However, an employee who is unable to do the job following FMLA leave, and doesn’t know if it will ever be possible to return to work, is not entitled to take open-ended time off as an accommodation.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the job rights of employees absent on military leave.  They cannot be denied reemployment, promotion or any other benefit of employment. Subject to certain exceptions under the applicable laws, these benefits are generally limited to five years of leave of absence.

Pregnancy-related leave issues are addressed under the Pregnancy Discrimination Act (PDA) which recognizes pregnancy discrimination as a form of sex discrimination. FMLA, and, in limited circumstances, ADA also govern how pregnant employees should be treated when they are unable to work because of their pregnancy. These laws generally fall into two categories – prohibitions against adverse employment actions and rules covering pregnancy-relate leave.

Many states also have laws regarding pregnancy discrimination, pregnancy leave, and family and medical leave laws.  A growing number of states require employers to make an effort to provide a room where employees who breastfeed their babies can express milk at work. Even if this isn’t required in your state, it could help employee retention.

 

What Leave Benefits are Governed Only by State Laws?
Workers’ compensation is in simple terms on-the-job injury leave. From your perspective, it is insurance paid by you to provide benefits to employees who become ill or injured on the job. Through this program, employees are provided with benefits and medical care, and you have the assurance that your employees will not sue you.

Worker’s compensation insurance requirements for employers vary from state to state. The differences can be incredible and knowing what insurance requirements your state sets is essential to protecting yourself as a small-business owner. Some states never require worker’s compensation insurance, some always require it, and for some, whether it is required depends on the number of employees your business has. Make sure you understand your state’s requirements.

Jury Duty – The Fair Labor Standards Act (FLSA) does not require payment for time not worked, including jury duty. This type of benefit is generally a matter of agreement between you and an employee.  While federal law does not, some state laws require employers to pay employees who are asked to serve jury duty.

Sick Leave – Although San Francisco is the only city that has passed legislation requiring mandatory sick leaves, several states have considered similar measures. One of the benefits of providing paid sick leave is that employees are less likely to come to work when they are sick if they will not lose pay. Encouraging sick employees to stay home can help reduce the chances of germs spreading at work, keeping the rest of the employer’s workplace healthier resulting in less employee absenteeism.

Accrued Vacation TimeAccrued vacation is normally paid to employees who are leaving the company regardless of the reason for separation. Some companies may also pay terminating employees prorated vacation pay for any vacation time that they would have earned during the next year, provided they have met all of the necessary eligibility requirements under the employer’s policy. Although employers may place certain restrictions on vacation pay rights, some states have provisions that require an employer to pay any accrued vacation upon termination of employment with the company.

What Leave Time Do You Govern?
Leave that is not bound by legal requirements is up to you.  Think and talk about the list as part of your compensation and benefits package.

  • Paid
    • Vacation
    • Holiday and Floating Holiday Leave
    • Sick Leave
    • Bereavement
  • Unpaid
    • Leave of Absence
    • Sabbatical

It is important to understand the universe of employee leave and follow-up with a plan to designate an individual as your resource person and expert on the legalities and best practices associated with the three categories in this article.

_____________________________________________________________________________This content was developed for the PHCC Educational Foundation by TPO, Inc. (www.tpo-inc.com). Please consult your HR professional or attorney for further advice, as laws may differ in each state. Laws continue to evolve; the information presented is as of November 2014. Any omission or inclusion of incorrect data is unintentional. Please note this article is not intended to provide legal advice or to substitute for supervisor employment law training.

The PHCC Educational Foundation, a partnership of contractors, manufacturers and wholesalers was founded in 1987 to serve the plumbing-heating-cooling industry by preparing contractors and their employees to meet the challenges of a constantly changing marketplace. If you found this article helpful, please consider supporting the Foundation by making a contribution at http://www.phccfoundation.org.

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