No federal law requires employers to provide employers with paid vacation, holiday, or sick leave benefits. One federal law, the Family and Medical Leave Act (FMLA), requires certain employers to provide job-protected leave to employees for events such as childbirth and tending to family members who are ill.
The FMLA does not require that the employer pay for this leave. Many states and localities have adopted laws requiring employers to provide some type of paid leave, usually sick leave. In addition, employers may choose to offer paid leave to employees as a benefit of employment.
What States Require Paid Leave to be Provided to Employees?
The following states require employers to provide paid sick and/or family leave:
- New Jersey
- New York
- Rhode Island
These laws are similar in operation. Under each, an employee must “accrue” (accumulate) a required amount of hours before that employee can take the leave. Each state law restricts the amount of leave an employee can take in a given year. Each state law also addresses the issue of “unused leave,” which is leave time that an employee can use, but does not use at the end of a given time frame. This leave may be “carried over” to a subsequent year, depending on a particular state’s carry-over law.
Each leave law generally requires that employees be paid their regular wage for time taken as leave. The leave may be used by employees to care for ill family members, for child birth and child bonding. Most of these leave laws permit employees to take paid leave for their own illness as well.
Many localities require businesses operating within their borders to provide employees with paid sick and/or medical leave. Localities in California, Illinois, New York, and Texas are among these localities. The paid sick/medical leave laws in these localities are similar in form and function to state paid sick/medical leave laws. Some localities offer leave that is more generous to employees than their state’s own required leave law.
If I Offer Paid Leave, What Rules Must I Follow as an Employer?
Many employers voluntarily offer paid vacation, holiday, and sick/medical leave to their employees, as a benefit of employment. For ease of administration, many employers provide employees with “Paid Time Off” (PTO). PTO may generally be used for any of the above purposes — that is, for vacations, holidays, and sick/medical leave.
Employers who offer any of the above types of leave should follow basic employment law principles in administering the leave. That is, leave policies should be outlined in an employee handbook. There is no legal requirement for an employee handbook, let alone one that contains a paid leave policy. However, having a written leave policy in an employee handbook serves to ensure employees know what is required of them, when it comes to making requests for leave, and how to make leave requests.
What Kinds of Handbook Guidelines Should Employers Establish?
Employers are not required to adopt their own leave policy. Generally, states requiring paid leave permit employers to “adopt” the state leave policy as the employer’s own, to satisfy the leave requirement. However, if and when an employer chooses to create a paid leave policy, the employer must ensure the policy is not discriminatory.
Under a federal law known as Title VII of the Civil Rights Act of 1964, employers may not discriminate in the awarding of employment benefits, on the basis of race, color, national origin, religion, or sex (the U.S. Supreme Court recently ruled that “sex” discrimination includes sexual orientation and gender identity discrimination). This law applies to employers with 15 or more employees. Many states have their own laws prohibiting discrimination. These laws frequently cover smaller workplaces.
In addition, employers should adopt the following measures to ensure smooth and uniform administration of paid leave policies:
- Employers should require employees to schedule leave in advance. The amount of advance notice should be sufficient to allow employers to find another employee to “cover” for the employee taking leave. The amount of advance notice to be sufficient to allow an employer to consider any other staffing issues that may result on account of the employee’s taking leave.
- Employers should develop a uniformly administered policy to keep track of (document) leave requests and days taken off.
- Employers should encourage employees to not misuse paid leave.
Do I Need a Lawyer for Help With Creating a Leave Policy?
If you are an employer who has questions about your state or locality’s paid leave policy, or questions about how to create your own paid leave policy, you should contact an employment attorney. This attorney can address your concerns and provide guidance as to how to proceed to avoid liability issues.