FAQs: Employee Leave Policies

It's no easy task keeping track of the various federal, state, and even local laws and ordinances governing employee leave. When drafting a leave policy for your workplace, it is imperative that you understand these laws and how they interact with one another. For instance, some local municipalities (such as San Francisco) require employers to offer limited paid sick time. And even though employers are not required to offer their employees paid vacations, those that do must treat it as compensation and pay out any unused vacation time when employees are terminated or laid off.

Below are some of the most frequently asked questions about employee leave policies (and their answers). See FindLaw's Leave Laws section for more information.

Does the law require employers to provide paid vacation time and sick leave?

No. The Fair Labor Standards Act (FLSA), which governs worker pay and worker hours, does not require employers to give employees paid vacation time and paid sick days. However, in an effort to attract a larger pool of qualified applicants, many employers have leave policies that give full-time workers paid vacation time and sick leave. If an employer offers vacation time, many states require employers to pay employees for the accrued time earned when employment ends.

Does the federal Family and Medical Leave Act (FMLA) apply to all employers?

No. the FMLA applies to employers with 50 or more employees within a 75-mile radius. However, similar state laws often apply to smaller workplaces not covered under the FMLA. State laws also may entitle employees to additional rights, such as the right to take unpaid leave to attend parent-teacher conferences or the right to care for an ill domestic partner.

The FMLA applies to employees who have been employed in the same workplace for at least a year and to employees that have worked at least 1,250 hours during the previous year. The FMLA gives employees the right to take up to 12 weeks of unpaid leave under the following circumstances:

• For the birth of a child during the first year
• For the adoption of a child or the placement of a foster child in the employee's home during the first year
• To care for an immediate family member with a serious mental or physical health condition (family members include spouses, parents, and children. The definition of children encompasses biological children, foster children, stepchildren, legal wards, and children that the employee cares for and supports)
• The employee suffers from a serious mental or physical condition that prevents the employee from working

Health problems covered by the Act do not include less severe conditions like the flu, a cold, or a minor ulcer.

Do employees have the right to take maternity and paternity leave?

If the FMLA applies, an employer must allow male and female employees to take up to 12 weeks of leave during the first year of a child's life or during the first year of the child's placement by adoption or foster care into the employee's home. An expectant mother may begin leave prior to the birth of the child if the condition interferes with her ability to perform the job duties or for the purpose of prenatal care.

Employer leave policies vary, but if an employer does provide paid maternity leave (and paternity leave) for a mother (and father), it must also give the same benefits to a father. In California, employers must offer employees paid leave to bond with a new child if State Disability Insurance covers the employee. Under the Paid Family Leave insurance program, an employee may take up to six weeks of time off. The program receives funds through payroll deductions.

Are employers required to give time off for voting, jury duty, and military service?

Most states have laws that prohibit employers from interfering with an employee's right to vote, serve on a jury, or join the military. Because voting is a civic duty, many states have laws that allow employees to take paid time off to vote if they are unable to vote during nonworking hours. Most state laws also prohibit employers from engaging in discriminatory acts against an employee that votes in an election.

Although jury duty is also a civic right, most state laws do not require an employer to pay employees for time spent on jury service unless the employer's policies make this provision. Laws vary by state, but most prohibit employers from firing or disciplining an employee for serving on a jury. In many states, a violation is a misdemeanor and may entitle the employee to reinstatement, back pay, and attorney fees.

Federal law and many state laws allow employees to take unpaid leave for joining the military, and in some cases, for military training. Laws vary, but in general, upon completion of the military service the serviceperson must be reinstated to their previous position or to a similar position.

Are employers required to give paid time off during an emergency like a pandemic?

Under federal law, employers are generally not required to provide paid leave to employees who take time off of work because of a pandemic though there are exceptions, and certain states or cities may have different laws.

The U.S. Department of Labor does advise U.S. employers to offer flexible leave policies during a pandemic, and to encourage workers who are sick — or have a family member who is sick — to stay home to minimize spread.

Leave policies may change during times of emergency, but usually, it is up to U.S. Congress and state legislatures to pass laws that make temporary changes to time-off requirements, such as the Families First Coronavirus Response Act, which required certain employers to provide employees with paid sick leave or expanded family and medical leave during the COVID-19 outbreak.

Unpaid leave may be available through the Family Medical Leave Act (FMLA). The FMLA requires employers to provide unpaid leave for specified family and medical reasons, which may include medical situations caused by a pandemic. Employees retain group health insurance coverage during their leave.

Need Legal Help?

Employee leave policies are not simple and typically involve seemingly contradictory laws and regulations. If you would like to ensure that your leave policies are compliant with all applicable laws, consider speaking with an employment law attorney specialized to work with employers.