How Can Employers Navigate Multiple Leave Laws?

When workers request time off, they may have the right to take job-protected leave under various federal, state and local laws. HR professionals should be aware of the differences between these laws and how they interact.

Under federal law, time off for serious health conditions may be covered under the Family and Medical Leave Act (FMLA). Eligible workers may take up to 12 weeks of job-protected leave each year for baby-bonding or to care for the employee's own or a relative's serious health condition.

State laws, however, may provide more generous family-leave programs and may also make sick leave available for workers with less serious medical conditions to address.

One of the biggest issues for multistate employers is that they may have to comply with several laws that can differ in terms of the amount of time off provided and the permissible reasons for use, said Tracy Billows, an attorney with Seyfarth Shaw in Chicago.

Furthermore, some cities have enacted their own paid-sick-leave programs that may differ from state rules or ordinances in neighboring cities.

"Be sure your human resources staff and any relevant decision-makers are trained and up-to-date on the laws relevant to your company to avoid potentially costly mistakes," said Elizabeth Odian, an attorney with Hinshaw & Culbertson in Milwaukee.

Family and Medical Leave

The FMLA covers employers with 50 or more workers, but some state laws cover smaller businesses. For example, Maine's law covers private employers with 15 or more workers and state and local governments with 25 or more.

State laws also may provide for longer leave periods or cover more relationships in their definition of "family member." For instance, in Washington, D.C., employees may take up to 16 weeks of unpaid family leave, plus 16 weeks of medical leave for the employee's own serious health condition during a two-year period. A "family member" in Washington, D.C., includes all blood relatives, as well as those who are related by legal custody or marriage and anyone an employee lives with in a committed relationship. California law counts domestic partners as family members, whereas the FMLA does not. 

FMLA leave is unpaid, but California, New Jersey, New York and Rhode Island offer paid leave. And workers in Washington, D.C., and Washington state will also be able to take paid leave starting in 2020.

Paid-leave programs usually operate through state disability insurance programs and are funded through payroll deductions. They may cover more employees than the state's unpaid-leave law but may cover shorter leave periods and may not provide job protection. For example, California employers with 50 or more workers must provide up to 12 weeks of job-protected, unpaid leave under the FMLA and the California Family Rights Act (CFRA), and California employers with 20 to 49 workers must provide job-protected baby-bonding leave. However, nearly all workers who pay into the state disability insurance program are eligible for up to six weeks of partial wage replacement, even if their employer isn't covered under the FMLA or the CFRA.

[SHRM members-only resource: Leave Laws by State and Municipality]

Employers should be on the lookout for more paid-family-leave laws. "We expect this trend to continue with additional states in the near future," said John McDonald, an attorney with Reed Smith in Princeton, N.J.

Paid-Sick-Leave Laws

Paid-sick-leave laws have been popping up in states and cities across the country, too. These laws allow workers to accrue and use a certain amount of paid sick leave each year. Leave can typically be used to cover time away from work for the employee's own or a relative's injury or illness or for preventive medical care. Some states also allow accrued time to be used for reasons related to domestic violence, sexual assault and stalking.

Even in states without such laws, some cities have their own ordinances. This makes compliance tricky. "Complying with one law does not guarantee compliance with a similar law from a different jurisdiction," Odian said.

In New Jersey alone, the number of local governments that have enacted paid-sick-leave requirements is in the double digits, McDonald noted. Cities in California, Illinois, Pennsylvania, Minnesota and Washington have also enacted paid-sick-leave laws. Since California and Washington have statewide laws, employers must comply with both the local and state rules. Some cities, such as Long Beach, Calif., and Los Angeles have specific rules for hotel employees.

Adding to the burden, the laws in each jurisdiction vary significantly, McDonald said. Key variables include:

• The accrual rate for sick leave.
  
• The maximum number of hours or days employees may accrue.
  
• Notice requirements.
  
• Whether all leave hours are paid or employees may accrue unpaid leave.
  
• Whether employees can carry over their accrued, unused sick leave to the following year.
  

How each law defines covered employers varies as well, he said. For example, to be considered a large employer in Washington, D.C., requires 100 employees, but Vermont's law requires only six.

"The variations can be dizzying," he said.

Compliance Tips

So how can multijurisdictional employers comply with myriad leave laws? Businesses need to figure out how to create and maintain policies that balance compliance, ease of administration and cost considerations in the best way for their organization, Odian said.

They may decide to have one policy that provides the most employee-friendly options for all applicable locations. "A single policy may be easier to manage and update with changing laws, but it will also be more costly," McDonald said.

Employers may instead choose to have a different policy for each location. "Handling paid-sick-leave compliance on a jurisdiction-by-jurisdiction basis maximizes compliance but results in a significant administrative burden on multistate employers," Billows said.

In addition, having multiple policies may create morale issues when there are different entitlements at different worksites, McDonald noted.

Alternatively, businesses may want to adopt a baseline policy and build from there using supplements or separate handbooks by location, Odian said. Or they could adopt a general, companywide policy notifying employees that benefits will comply with state and local laws, which may vary by location.

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