Compliance is often the greatest challenge when administering your company's leave policy. Employees are entitled to time off in certain circumstances, such as family emergencies, jury duty, military service, or dealing with a medical issue. But the leave laws that grant these rights are a complex mish-mash of local, state, and federal legislation.
The first step is to know exactly which laws apply to you, starting with the primary federal laws. Six pieces of federal legislation govern time off for employees:
- Family Medical Leave Act (FMLA)
- FMLA Military Caregiver Leave
- Jury Act
- Uniformed Services Employment and Reemployment Rights Act (USERRA)
- Families First Coronavirus Response Act (FFCRA)
- Federal Employees' Compensation Act (FECA)
Let's take a look at what these laws mean for employers. Please note that this article is not intended as legal advice. Before making any changes to your leave policy, consult an employment law expert or speak to a Leave Administration Outsourcing service.
Overview of the primary federal leave laws
Federal laws represent the baseline leave entitlement for every American worker. If an employee qualifies for leave under any of these laws, you're obliged to grant them time off. Non-compliance can result in fines or even criminal prosecution in some cases.
Many states and municipalities have introduced their own laws that grant additional entitlements to employees. You'll find an overview of state-by-state variations below. Download the State & Federal Leave Law Comparison Chart to get the full picture.
Family Medical Leave Act (FMLA)
FMLA guarantees that every American covered by the policy can avail of 12 weeks of time off for medical events or to care for a family member. FMLA is unpaid, but employees are entitled to a continuation of their existing health insurance coverage.
The events covered by FMLA include:
- Caring for newborn children
- Fostering or adopting
- Caring for a spouse, child or parent with health issues
- Dealing with a serious health condition that prevents the employee from performing their duties
All public-sector employees are covered by FMLA. Private sector employees are covered if they:
- Have worked at least 1,250 hours in the past 12 months
- Work within 75 miles of a location with more than 50 employees (for remote workers, this location is the office to which they normally report)
- Have been with the employer for over 12 months
Upon the employee's return, FMLA mandates that the employee should be allowed to return to their old job. If the employer wants to assign them to a new role, it has to be one with the same schedule, benefits, duties, and skill requirements.
State-by-state variations: D.C. has a localized version of FMLA that grants up to eight weeks of paid time off for qualifying events. Other variations include part-payment or extended maximum leave times.
FMLA Military Caregiver Leave
FMLA contains special provisions for the family members of people in the armed forces. If an employee's spouse, child, or parent is on active duty in a foreign country, that employee can take up to 12 weeks of unpaid leave to deal with qualifying exigencies.
Qualifying exigencies include things like:
- Any issue arising from short-notice deployment (maximum of seven days leave)
- Attending military events
- Providing or arranging childcare for the service member's child
- Caring for the military member's parent
- Dealing with financial or legal issues arising from the military member's absence
- Attending counseling in relation to deployment
- Rest and recuperation with a returning military member (maximum of 15 days)
- Post-deployment activities
Employees can also claim up to 26 weeks of unpaid leave under FMLA if caring for a sick or injured service member. To qualify, the person receiving care must be a current armed forces member or a veteran within five years of discharge. Dishonorable discharges are not eligible for this leave.
State-by-state variations: Some states offer additional military leave benefits. For instance, employers in Illinois must offer 15-30 days of unpaid leave to spend time with family when the employee’s deployment orders are in effect.
Jury Duty
Federal law does not explicitly lay out a leave policy in relation to jury service. However, jury duty is compulsory for everyone, and the Jury Act states that an employer cannot:
…discharge, threaten to discharge, intimidate, or coerce any permanent employee by reason of such employee's jury service, or the attendance or scheduled attendance in connection with such service, in any court of the United States.
Essentially, employers must make their employees available to serve as jurors as required. When the employee returns to work, they must be allowed to resume their position. There are stiff penalties if you defy the Jury Act, plus the courts can order the employee to be reappointed – with back pay.
Federal law does not oblige employers to pay staff during jury duty. Where permitted by local laws, an employer may ask the juror to use some of their available leave to cover their time away.
State-by-state variations: The majority of states have jury duty laws that provide additional rights for jurors. District of Colombia requires employers to offer full pay during jury duty. In Virginia, employers cannot require jurors to use any of their available leave allocations.
Employee Military Leave
The Uniformed Services Employment and Reemployment Rights Act (USERRA) covers employees who take time off work for military duties. The employee must be allowed to return to their previous role, as long as they:
- Provided reasonable advance notice of their absence
- Have under five years of cumulative service with that employer
- Return to work in a timely manner after they conclude their service
- Are not dishonorably discharged
Upon the employee's return, they must be allowed to return to their previous position. Sometimes, this may require that the employer offers training and support to help bring the employee back up to speed.
Employers are not required to pay service members who are absent on USERRA leave. However, the employee must have the option to retain their current health insurance coverage. If they choose to discontinue their health insurance, they can be reinstated without any exclusions or waiting periods when they return.
State-by-state variations: Most states have their own versions of USERRA that offer additional entitlements. For instance, service members in Maryland receive up to 15 days of paid leave per year for active duty or training.
Public Health Emergency
The Families First Coronavirus Response Act (FFCRA) is a law passed to handle the specific challenges of the Covid-19 crisis. The original incarnation of this law ran until December 31, 2020, and guaranteed that workers would receive paid sick leave if they were affected by the coronavirus. The exact provisions were:
- Two weeks (up to 80 hours) is quarantining due to Covid
- Two weeks (up to 80 hours) if caring for a family member affected by Covid
- 10 weeks of two-thirds the regular rate of pay if caring for a child with Covid, or unable to attend work due to school closures
FFCRA is now optional for employers. Covered employers can choose to continue providing these payments if they wish, but they don't have to (unless obliged by local laws.)
However, if an employer continues to offer FFCRA payments, they will still be eligible for a tax credit. This tax credit covers the full value of any salary payments, dollar for dollar.
State-by-state variations: Some states still have mandatory FFCRA rules. For example, employees in New York state are entitled to five days of paid leave in some Covid-related circumstances.
Worker's Compensation
In the private sector, worker's compensation is regulated at a state level. All 50 states have legislation related to on-the-job injuries, with most states requiring employers to opt into a relevant insurance scheme.
All government employees are covered by the Federal Employees' Compensation Act (FECA). This law covers any injuries sustained while carrying out duties related to the government. Under FECA, federal employees are entitled to:
...continuation of pay for up to 45 days. Continuation of pay is paid by the employing agency and is equal to 100% of the employee's rate of pay at the time of the traumatic injury.
If the employee used some of their Paid Time Off allocation to cover an injury, they might be allowed to buy back that leave time. Leave Buy Back (LBB) processes are defined by each agency, with varying rules about eligibility and limits.
State-by-state variations: Worker's Compensation insurance is a requirement for employers in every state except Texas. Some states, such as Ohio, require employers to purchase coverage from a state-run insurer.
State-level leave laws
Each state may choose to supplement the above federal laws. For example, some states might provide paid leave or redefine which employees are covered.
States also have their own standalone leave laws with which employers must comply. Some of the most common types of state-level laws include:
Paid family leave: Employers must provide time off for childbirth, adoption, or caring for a family member. Found in states including California, Colorado, and D.C.
Paid disability leave: Ongoing payments after sustaining a debilitating injury during the course of normal work duties. Paid disability legislation exists in New York, New Jersey and Rhode Island.
Paid sick leave: Paid time off for personal illness. Employees in states like Maryland, Michigan, and Vermont enjoy this right.
Pregnancy disability leave: This is a specific type of leave that relates to serious illness arising as a direct result of pregnancy or childbirth. This type of leave exists in California, Oregon, and other states.
Bereavement leave: Workers in Oregon and Illinois are entitled to some time off when grieving the loss of a loved one.
Leave compliance – getting it right
Leave laws are complex, but it’s up to every employer to get it right. There’s a lot to think about, such as:
- Understanding applicable leave laws
- Harmonizing your leave policy with regulatory requirements
- Categorizing leave requests
- Tracking available leave allocations from each employee
- Managing paperwork such as medical reports
The first step to leave compliance is to know which laws apply in your area. Download the State & Federal Leave Law Comparison Chart to get the full picture.
