Employee Leave Toolkit
Resources to help employers comply with the legal requirements associated with employees taking leaves of absence from work.
Employers often struggle to comply with their legal obligation to provide job-protected leave from employment. There is no single, uniform rule governing leave. Instead leave law is made up of multiple, complex and interrelated rules.
Failure to comply with leave law requirements can result in substantial legal and financial consequences. For example, employers may be required to pay lost wages, double damages and attorneys' fees. Additional legal consequences may include mandated employee reinstatement or promotion and other injunctive relief.
Understanding the core requirements of employee leave law helps employers avoid penalties and promote compliance. An employee may need a leave of absence for:
Personal disability or illness. Leave necessitated because of the health of an employee implicates a number of federal and state statutes that define coverage and rules for when, how and to whom leave must be granted. Relevant federal laws include:
Workplace health and safety issues. Employees may need to take a leave of absence because of illness or injury on the job that may require an understanding of workers' compensation ( www.practicallaw.com/9-503-8277) and laws relevant to an outbreak of pandemic disease.
Family disability or illness. The FMLA and some states' equivalent laws require covered employers to offer leave to eligible employees who need time to care for family members.
Pregnancy or parental obligations. Pregnancy-related conditions may be regarded as a disability ( www.practicallaw.com/5-501-9332) under federal law, and pregnant employees may be entitled to disability leave. New parents are also authorized to take job-protected leave under the FMLA. Some states, like California, have statutes specifically granting additional rights to pregnant employees.
Military service obligations. The Uniformed Services Employment and Reemployment Rights Act of 1994 ( www.practicallaw.com/5-502-5644) (USERRA) protects an employee's right to return to work after returning from qualifying military service.
State-specific obligations. State laws may impose additional or different obligations on employers, including leave for jury duty, witness testimony, voting or blood donation. (For more information about state-specific leave laws, see State Q&As under Related Content.)
Health care reform issues. Health care reform's employer mandate rules relate to leave law as well because of the exclusion for USERRA, FMLA and jury duty (collectively referred to as "special unpaid leave") for purposes of calculating who is a full-time employee (see Practice Note, Employer Mandate under Health Care Reform: Determining Full-time Employees for Employer Payments: Exclusion for FMLA, USERRA and Jury Duty Leave ( www.practicallaw.com/9-524-2565) ).
The Employee Leave Toolkit provides information on best practices for responding to employee leave issues, including resources to help employers respond to leave requests, comply with leave laws and minimize litigation risk.
Standard Documents and Clauses
FMLA Standard Documents:
Bereavement Leave Policy (CO)
New Jersey-specific materials:
New York-specific materials: