Leave Laws

Small-business owners must install effective employee leave programs depending on the size of their business. Not all federal laws apply to smaller companies. State laws can be more restrictive, so small businesses must know which leave laws they must follow. Some employers offer paid sick leave and vacation time as employee benefits. In some states, paid sick time is mandatory.

Federal employment laws require some kinds of unpaid leave. FindLaw’s Small Business and Human Resources section contains articles about employee leave and federal law. This article is only an overview of some of those laws.

Employee Leave Policies

A few employee leave policies are mandatory. Businesses over a certain size must follow the Family and Medical Leave Act. Some policies are optional. Most employers are not required to offer paid sick leave. There may be rules about optional policies.

The Fair Labor Standards Act (FLSA) sets baseline standards for minimum wages, overtime pay, and break periods. Other states like California have used the FLSA to create their own wage and time off laws.

Most federal laws apply to businesses with 50 or more employees. Some state laws apply to businesses with as few as five. Small-business owners should check their state labor laws as well as federal laws to see if they are covered employers under state law.

Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act covers employers with 50 or more employees. This law requires employers to provide all eligible workers up to 12 weeks of unpaid job-protected leave in any 12-month period. Workers may use that time to:

• Care for an immediate family member with a serious medical condition
• Care for their own serious health condition
• Bond with a newborn child or an adopted child

Workers may use FMLA leave in a single period or intermittently. Employers may require workers to use paid sick leave or other vacation time before or during their FMLA medical leave.

Military Leave

The Uniformed Services Employment and Reemployment Relief Act of 1994 (USERRA) prohibits employers from discriminating against employees who serve in the military. USERRA requires employers to reemploy a worker on deployment voluntarily or involuntarily. Deployment includes National Guard service, active reserve duty, and training service.

Reinstatement applies to all employers regardless of their size, if:

• The employee gave advance notice of training or service
• Cumulative military leave did not exceed five years
• The employee applied for reemployment within the time required by USERRA
• The employee received an honorable or general discharge

Employers may inquire about a servicemember’s discharge if there is a nondiscriminatory reason for doing so. Some states may have restrictions against doing so.

During the Iraq/Afghanistan conflict, many servicemembers found their deployment had been involuntarily extended beyond their expected tour, a process known as stop-loss. The five-year leave only applies when the employee voluntarily extends their service. If the employee otherwise qualifies, a stop-loss order will not disqualify them from protection under USERRA.

An employer is not required to reinstate an employee if it would create an undue hardship, for instance, if the business has undergone reorganization or downsizing since the employee left. Part-time employees or workers who were only employed for a brief period before deployment do not have a reasonable expectation of reinstatement.

Vacation and Sick Leave

There is no federal paid sick leave law. Some states, such as California, have begun requiring businesses to provide paid sick time for eligible employees.

Vacation time is often offered as a perk to attract or retain employees or as a negotiation point in collective bargaining agreements. States may have their own laws about the accrual and payment of vacation time. In some states, employers must pay unused vacation time as wages when an employee leaves work.

Employers should check their state laws when creating their employee leave policies. States’ requirements for eligibility and exemptions are always changing.

Voting and Jury Duty

No federal law requires paid time off for voting or jury duty. Most states have laws requiring unpaid time off for voting if employees can show they cannot vote.

Employers must allow employees to serve on a jury. Terminating an employee for jury service is a misdemeanor offense in some states. Employers are not required to pay employees their wages during jury duty.

Hiring an Attorney

If you want to ensure your policies and practices comply with federal and state laws, contact an employment law attorney in your area for legal advice.