Leave Policies: What Every Employer Should Know Pt. 1

by Michael Gugel

Leave policies are a hot topic in American workplaces right now. There have been significant changes in time off from work over the last several years. Many employers have questions. From where to start to the type of plan to put in place; we are providing a two-part series on leave policies.

In this week’s article, we cover the basics and explain some mandatory policies that apply to many employers. Plus, we address common requirements — even how to approach policies and documentation. Next week’s article will examine recent trends in leave policies and how to determine the best path for your organization.


Access to time off can be a tremendous perk for employees. For employers, offering this type of benefit can create goodwill and loyalty among employees, as well as improve their competitive position in recruitment and retention. Some employers are required to provide certain types of leave to employees, yet many go further.  Understanding the requirements and following applicable laws can be complicated. Here’s a look at the highlights.

Types of Leave – Family Medical Leave Act (FMLA)

Let’s start with the Family Medical Leave Act (FMLA), which many employers are required to follow. These rules apply to companies with 50 or more employees in 20 or more workweeks in the current or preceding calendar years. The law also applies to most public agencies and public and private school systems. Enacted in 1992, there were updates in 2008 to include provisions for military service.

An employee is eligible for FMLA if he or she:

1. Works for a covered employer

2. Has worked for the employer at least 12 months

3. Has at least 1,250 hours of service during the 12-month period immediately preceding the leave

4. Works at a location where the employer has at least 50 employees within 75 miles

The Act provides for unpaid job-protected leave for up to 12 weeks in a 12-month period for the following reasons:

1. The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care
2. To care for a spouse, son, daughter or parent who has a serious health condition
3. For a serious health condition that makes the employee unable to perform the essential functions of his or her job
4. For any qualifying exigency arising out of the fact that a spouse, son, daughter or parent is a military member on covered active duty or call to covered active duty status.

There is another provision for an eligible employee to take up to 26 weeks of unpaid job-protected leave
during a single 12-month period: To care for a covered service member with a serious injury or illness, when the employee is the spouse, son, daughter, parent or next of kin of the service member.

One key theme to notice in the FMLA is that the mandated leave is unpaid. Family medical leave protects employees’ jobs, but it does not require the time off has to be paid. Employers, however, can require or allow employees to use paid time at the same time as family medical leave. An employee returning to work from FMLA leave is entitled to be restored to the same job or an “equivalent job.”

Military Leave

Whereas the Family Medical Leave Act is widely known, the Uniformed Services Employment and Reemployment Right Act of 1994 (USERRA) is not as well understood. Employers need to understand their responsibilities and the rights of employees under USERRA. The Act covers all public and private employers in the United States. It protects the rights of those who leave employment to serve in the uniformed services.

When an employee receives orders to active duty and provides notice to the employer, the employee is entitled to be promptly reemployed in his or her position upon returning to employment. This includes seniority, status and rate of pay that he or she would have ordinarily attained if the military service had not intervened. USERRA is designed to eliminate discrimination against military members in hiring practices and reemployment. Leaves of absence can generally last up to 5 years. There are exceptions to the 5-year limit.

Health Insurance Benefits

Employers also need to be mindful regarding the handling of employer-provided health insurance during FMLA and military leave. In some cases, the employee cannot be required to pay more than the regular employee share. This is the case when an employee is on FMLA leave, as well as when an employee is on military leave for less than 31 days.

State and Local Requirements

Employers should also understand any specific requirements in their state and locality. Several states and local governments have passed legislation for paid family medical leave and paid sick leave. These laws provide greater benefits to employees. They may also apply to a broader spectrum of employers.

Policy and Procedure Considerations

As organizations grow and mature, more people become affected by their policies. It is important to institute transparent policies and procedures. There are aspects of some of these laws where an employer may have to make a policy decision. One example is the 12-month period mentioned in the FMLA. The employer can recognize any 12-month period or a rolling 12-month period. Many employers also go above and beyond USERRA and provide a set amount of paid leave. Making a clear distinction in policy allows employees to have greater clarity and satisfaction.

Organizations also need to be exact and deliberate in their record keeping. Leave laws and policies protect both the employer and the employee. This only happens when the I’s are dotted and T’s crossed. Next week, we will take a closer look at leave benefit options employers may consider. These types of benefits can have a positive impact on employee recruitment and engagement. With so many different strategies out there, what will work best for your organization? Find out in next week’s article.

Requesting or approving time off and distributing company policy to employees doesn’t have to be complicated. Discover how GoCo can simplify your HR, paid time off, benefits and payroll so you focus on doing what you do best.

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