Legal Ease
Employee Leave Laws: Family and Medical Leave
By Richard D. Alaniz, Alaniz Law & Associates T
he passage of the Family and Medical Leave Act (FMLA) in 1993 marked the beginning
of mandatory leave in American workplaces. Prior to that whether leave for any purpose was granted to an employee was totally at the discretion of the employer. The FMLA, which applies to employers with 50 or more employees within a 75-mile radius, provides up to 12 weeks of unpaid leave per year for certain specified purposes. The leave may be taken for the birth or adoption of a child as well as for a “serious” medical condition of the employee or a close family member. It may also be used intermittently if the medical condition creates the need for periodic absences.
State Action As has been seen on the issue of the minimum wage, when the federal government fails or is slow to act, the states often step in to address the matter. Paid family leave is an issue on which several states have enacted legislation. Currently, 7 states, California, Connecticut, Massachusetts, New Jersey, New York, Rhode Island and Washington, along with Washington D.C. provide paid family and medical leave. In addition, as of January 1, 2021 Maine employees are eligible for leave for any purpose, although it will be limited to 40 hours per year. All of the states and Washington
D.C. have dollar maximum limits on wage replacement during leave. In most cases the maximum amount allowed is tied to the state’s average weekly wage. Thus far, it has been exclusively Blue states that have adopted paid family leave, but more, including some Red states, are sure to follow in the absence of federal action on the issue.
Paid Sick Leave There is currently no mandatory sick
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leave, paid or otherwise, under federal law. As we have seen in the case of paid family leave, several states have adopted mandatory paid sick leave programs. Currently 6 states require paid sick leave – California, Connecticut, Massachusetts, Oregon, Vermont and Washington. Generally the leave is limited to accrual of 40 hours per year. The leave time is paid at the employee’s normal hourly wage rate. In addition, a growing number of
cities have adopted mandatory paid sick leave. The laws adopted by Austin, Dallas and San Antonio are currently under legal challenge. In California, most major cities have adopted paid sick leave laws. Major cities in other states such as Seattle, Chicago, Minneapolis, St. Paul, Philadelphia, Pittsburgh, and New York have done so as well.
Personal Leave Virtually all employers today permit employees to take unpaid personal leave for a variety of reasons, including medical needs. However, it is generally limited to some specified period and generally only granted for good reason. Mandatory limits on maximum personal leave available have come under scrutiny recently as potentially violating the Americans with Disabilities Act (ADA). In some cases, a medical condition will require extended time off. If the employee suffers from a disability, additional leave beyond the employee’s normal maximum could be legally required as a reasonable accommodation. As a result some employers have eliminated maximum leave rules and deal with the issue on a case-by-case basis.
Difficult Leave Issues Leave Documentation The granting of employee leave, whether FMLA or otherwise brings
with it certain recordkeeping issues that can sometimes be troublesome for employers. FMLA leave certification requirements, for example, is one area where employers sometimes falter despite the fact that the law requires strict compliance. Upon becoming aware of the possible need for FMLA leave, the employer must notify the employee if medical certification for leave is required. The notice should be included in the written “Rights and Responsibilities Notice” that is required to be given to the employee within 5 days of becoming aware of the employee’s need for FMLA leave. The employer must also notify the employee in writing if the leave will or will not be FMLA-covered. It is fairly common for employers to fail to give all of the required notices. Failure to give proper notice is one of the types of technical violations that could pose problems if challenged. Notice problems can often be avoided if the employer consistently utilizes the forms made available by the Department of Labor. They contain all of the required information and are a sure way of tracking compliance. They can be found at
https://www.dol.gov/ general/forms.
Recertification Requests Employer requests that an employee on FMLA leave recertify the continuing need for leave have also created legal problems for employers. An employer has the right to request that the employee provide recertification of their serious health condition or the serious health condition of their family member. However, there are limitations. A recertification request may be made no more often than every 30 days, and only when the employee is actually absent or has requested to be absent. If the initial certification indicates the minimum duration of the serious health
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