Leave Policies in the Workplace FAQ

Am I legally required to offer paid vacation and sick leave to my employees?

Generally, no. Many employers are surprised to learn that they are not legally required to give their employees paid time off (although a few localities, such as San Francisco and the District of Columbia, require employers to offer some paid sick leave). Despite this legal leeway, however, most employers do offer some variety of paid leave. A generous leave policy can help you attract high-quality employees and improve office productivity and morale.

If you decide to adopt a policy that gives your employees paid vacation or sick time, be sure to apply the policy consistently to all of your employees. If some employees receive a more attractive package than others, you might be vulnerable to a discrimination claim.

I run a small business. Do I have to provide family and medical leave?

It depends on how small your business is. The federal Family and Medical Leave Act (FMLA) requires employers to give 12 weeks of unpaid leave in certain circumstances (and up to 26 weeks of leave for employees who need to care for a family member who was seriously injured while serving in the military). However, the FMLA applies only to companies that employ more than 50 people within a 75-mile radius. If your company doesn't meet these conditions, you do not have to provide leave under the FMLA.

However, many states also have family and medical leave laws, and these often apply to smaller business. So even if the FMLA does not apply to you, your state's law might. To learn more about your state leave law, contact your state labor department.

Am I legally required to give my employee leave to care for a sibling?

It depends. The federal Family and Medical Leave Act (FMLA) requires you to grant leave for your employees to care for family members with a serious health condition, and it defines family members as parents, spouses, and children. (Parents include those persons who took the place of a parent when the employee was a child; children include those children whom the employee cares for and supports.) The definition, however, does not include many people that most of us consider family members, including grandparents, aunts and uncles, in-laws, same-sex partners, or siblings. For more on the FMLA, see Nolo's article Providing Family and Medical Leave. 

The military family leave provisions of the FMLA might allow time off, however. These provisions, added in 2008, allow eligible employees to take up to 26 weeks of leave in a single 12-month period to care for a family member who was seriously injured while serving in the Armed Forces. For purposes of this entitlement only, the definition of family member is much broader, and includes adult children, siblings, grandparents, and cousins. For more information on these rights, see Nolo's article Family and Medical Leave for Military Family Members. 

If your state has a family and medical leave law, it might require leave to care for siblings. To find out about your state's law, contact your state labor department. For information on employee leave rights under state laws -- and what happens if both the FMLA and a state leave law applies -- see Nolo's article State Family and Medical Leave Laws. 

How much notice can I require of an employee who wants to use FMLA leave?

It depends on why the employee needs leave. If the employee knows well in advance when he or she will need to take leave, the employee must give at least 30 days' notice. For example, if an employee has surgery scheduled in two months, that employee can give the required notice. If, however, the employee needs leave for an emergency, the employee is required to give only as much notice as is practicable under the circumstances. For example, an employee who is hit by a car should inform the employer as soon as it is practical to do so. 

Under revised regulations issued in 2008, an employee who wants to use accrued paid leave during FMLA leave must follow the notice requirements of the employer's policy. If the employer's policy requires one week of advance notice to use vacation time, for example, the employee must provide that notice. If the employee has a medical emergency and cannot give any advance notice, the employee is still entitled to FMLA leave, but may not take paid leave until the employer's requirements are met. For more information on the FMLA's notice requirements, see Nolo's article FMLA Regulations Change Rules on Notice and Certifications. 

Do I have to let my male employees take paternity leave?

It depends. If your business is covered by the Family and Medical Leave Act (FMLA) and the employee is eligible for leave, you must allow the employee to take up to 12 weeks of leave to care for a new child. This leave is unpaid and must be taken within a year of the child's arrival.

Generally, employers are not required to offer paid leave to either parent after a child's birth. However, if you do offer a paid maternity leave benefit, you must offer this leave to new fathers as well as mothers or risk a lawsuit for sex discrimination. In other words, if you offer paid leave, it must be parental leave, not maternal or paternal leave.

In addition, the states of California and New Jersey, as well as the District of Columbia, now provide  paid family leave to new mothers and fathers. (The state of Washington has a similar law, but it has not gone into effect due to budgetary constraints.) Many others states are considering paid family leave laws as well.

Do I have to give my employees time off for voting, jury duty, or military service?

The answer will differ depending on the state where you do business. Here are the basics.

Voting. Almost half of the states require employers to provide a few hours of paid leave to allow their employees to vote. Generally, paid leave is required only if the employee would have insufficient time to vote without taking time off.

Even if you live in a state that does not require paid leave for voting, you must not punish any employee for taking time off to cast a ballot. Almost every state prohibits employers from firing or disciplining an employee for taking leave to vote.

Jury duty. Most states do not require you to pay your employees for the time they spend on jury duty, unless your own employment policies provide for such pay.

But almost every state prohibits employers from firing or disciplining an employee for being called to jury duty. In some states, an employee fired in violation of these laws can sue you for lost wages. In addition, a handful of states impose criminal penalties against employers who break this law.

Military duty. Federal law requires employers to allow employees to take up to five years of leave for military service. And, in almost every state, employers must allow their employees to take leave for certain types of military duties, such as service in the state Guard or Militia. You are not required to pay your employees for this time off.

To Learn More 

For a complete guide to your legal rights and responsibilities as an employer, get The Employer's Legal Handbook: Manage Your Employees & Workplace Effectively, by Fred Steingold (Nolo).

If you want some advice from a lawyer, Nolo's Lawyer Directory can help you find a local employment lawyer.

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