Employee Handbooks Part III: Are Your Leave Policies Compliant?

Ah summer, you are almost here.  Well, here in Upstate New York, that is probably wishful thinking, but it might get you thinking about vacation, and whether your vacation policy is legally compliant.

Leave policies can be an employer’s best friend or their worst nightmare.  They can make your employees feel valued and increase retention.  They can also leave you holding the bag for paying someone money you feel they have not earned, and can cost you in a lawsuit or government investigation if they are not properly drafted or not followed.

Leave policies cover everything from leaves for illness and injury to leaves for jury duty and, of course, vacation.  What is required of an employer depends on the size of the business, the state in which it operates, and, in some cases, even the city in which it has employees.  This post can’t cover every contingency, but it should give you something to think about—and questions to raise with your business and your legal counsel before you take that vacation.

Sickness, Illness, Injury, Pregnancy

An employer with 50 or more employees in a worksite (or within a certain number of miles from a worksite with 50 or more employees) must comply with the Family and Medical Leave Act (29 USC § 2612).  In general, this statute provides an eligible employee a total of 12 work-weeks of leave during a 12-month period for certain specified reasons including the birth or adoption or a child, to care for the employee’s immediate family member’s serious health condition, or for the employee’s own serious health condition.

Some states and cities (such as New York City) have enacted paid sick leave laws that require employers to provide specified amounts of sick leave to employees.  Other states and municipalities (such as New Jersey and Philadelphia, PA) have enacted maternity leave statutes.

Virtually every employee is covered by Worker’s Compensation for work-related accidents, and many employees are covered by disability laws for non-work related accidents.

Military Leave and Military Families

The Uniformed Services Employment and Reemployment Rights Act (USERRA) (38 USC § 4311) provides protection for service members and members of National Guard.  It prohibits discrimination in employment and requires re-employment following active duty in most circumstances.

The FMLA also requires employers with 50 or more employees to provide two types of military family member leave—exigent circumstances leave and leave to care for a sick or injured service member.  As these leaves were enacted as amendments to the original statute, employers would do wise to check their policies and handbooks to ensure they have updated their FMLA policy to include this leave.

In the wake of the wars in Afghanistan and Iraq, many states, including New York, have also enacted military leave and military family member protection statutes.   These statutes typically apply to smaller employers (those with less than 50 people) and may provide for paid leave, or may apply even if an employee does not qualify under the FMLA (for instance, by having less than a year of service with his/her employer).

Vacation, Personal Time, Holidays

The rules for vacation, personal time and holidays are governed by the laws of the states (or municipalities) in which a business operates.  In New York, an employer with any number of employees is required to notify those employees in writing or by publicly posting the employer’s policy on sick leave, vacation, personal leave, and holiday pay.  See New York Labor Law §195.5.

Any employer should be able to answer the following questions about personal time and vacation time for employees:

  • How is leave earned?
  • How is leave used?
  • Does leave carry over from year to year or is it forfeited if not used?  (Is there a cap on carry over?)
  • What happens on separation from employment?  (Is there a maximum amount that can be paid out?)

Finally, employers should not forget to address paid holidays.  Who gets paid?  How much?  What happens when a holiday falls during an employee’s scheduled vacation?

Other Leaves

Other legally required leaves vary by place of operation.  Some other leaves to consider include:

Jury Duty Leave

Voting Leave

Blood Donation Leave

Bereavement Leave


Article written by Dawn J. Lanouette, Esq.  For more information contact Mrs. Lanouette at 607-231-6917 or via email at dlanouette@hhk.com.

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