Employee Leave: Reviewing the Basics

By Leslie Lasher

Employers often find themselves in legal entanglements regarding the administration of leave policies. I often receive questions about how or whether the employer is required to provide different types of leave, how different types of leave intersect, and the impact of making employment decisions while someone is on leave, for example.

In this new employment law series, I will be outlining several different types of leave, with special focus on the intersection of FMLA, ADA, Workers’ Compensation, and employer-provided Paid Time Off.  First, we will take a look at the basic types of leave to give us a good starting point.

The Family Medical Leave Act (FMLA), which I will review more closely in the coming weeks, applies to employers with more than 50 employees. FMLA generally provides up to 12 weeks of job-protected leave for employees with serious health conditions, employees who are caring for a family member with a serious health condition, or employees who have recently birthed or adopted a child. FMLA may also apply to family members providing care for military service members.

Speaking of the military, I should mention that those who serve our country are entitled to certain leave rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The provisions of USERRA allow service members protected leave so that they can return to their jobs and maintain their seniority after service tours or military training.

The Americans with Disability Act (ADA) generally requires an employer with 15 employees to provide reasonable accommodations to employees with a qualified disability.  A leave of absence to is considered one type of reasonable accommodation.

Another type of leave that comes to mind quickly for most employers is Worker’s Compensation. North Carolina’s workers’ compensation laws apply to employers with three or more employees.  Workers’ Compensation provides reduced, but substantial pay to employees who suffer from a compensable workplace injury and are required to miss work. The world of workers’ compensation can be fraught with risk when it comes to attempting to comply with other leave laws in conjunction with workers’ compensation.

An employer also has to keep in mind that, if it promises its employees paid time off under certain scenarios, it should provide such leave even if a federal or state law does not require the employer to provide paid leave. Many people are surprised to learn that vacation and sick leave are not driven by federal or state law requirements, but are driven instead by the competitive marketplace.  In addition to leave that is mandated by the state of North Carolina, like jury duty leave and school conference leave, employers typically provide the following types of leave, which may be paid or unpaid:

  • Public Holidays
  • Vacation Days
  • Sick Days
  • Bereavement
  • New Child Bonding Leave
  • Temporary Disability Leave
  • Voting
  • Community Service

In our next installment, we will take a deeper look at the cluster of considerations created by the Family Medical Leave Act. FMLA can be a sticky area for many employers, and we enjoy helping our clients at the Forrest Firm as they try to maintain compliant and fair workplaces. Contact me at the firm to learn more.