Compliance/Best Practices Employment Law Legal Topics

2 Rules of Thumb for Employee Leave Requests

ThinkstockPhotos-546781590There are so many federal and California laws giving employees the right to take time off work that it’s not surprising to find more than one law governing a particular employee’s leave or absence. But there are two rules of thumb that help employers navigate this often complicated area.

First, gather and review the universe of laws that might apply. Before denying an employee’s leave request because he or she doesn’t meet the eligibility requirements of a particular statute, an employer should carefully consider all laws that might provide the employee a right to leave under the circumstances.

For each law, the employer needs to determine the following:

  • whether it’s covered by the law (e.g., some leave statutes only cover employers with a certain number of employees),
  • whether the employee meets the eligibility requirements,
  • the employer’s obligations (e.g., notice, reinstatement),
  • the employee’s leave entitlement, and
  • any other terms, limitations, and restrictions.

And if more than one leave law applies, the employer has to understand the ways in which the laws interact to properly calculate and track the employee’s leave (e.g., running leave entitlements concurrently or consecutively). For example, the Equal Employment Opportunity Commission discusses the interaction between the Family Medical Leave Act and the Americans with Disabilities Act in its Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (Oct. 17, 2002).

Second, apply whatever gives the employee the greatest benefit. In determining the amount of leave that an employee may take and the benefits and protections associated with that leave, an employer must provide an employee with the most generous leave entitlement, benefits, and protections provided by any of the laws applicable to the leave. See e.g., 29 CFR §825.701(a) (“Nothing in FMLA supersedes any provision of State or local law that provides greater family or medical leave rights than those provided by FMLA”).

If a collective bargaining agreement or an employer’s policy provides greater leave entitlements or benefits than those under applicable leave laws, the employer has to comply with the more generous provisions. For example, California’s paid sick leave law “does not lessen the obligation of an employer to comply with a contract, collective bargaining agreement, employment benefit plan, or other agreement providing more generous sick days.” Lab C §249(c). See also 29 CFR §825.700(a) (“An employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA”).

This sounds straightforward, but it can get tricky when the employer must comply with one law or policy in calculating the leave entitlement, another for determining the other leave benefits, and another for specifying the terms and conditions of the leave.

Get help with this type of tricky situation as well as all other aspects of navigating employee leave laws in CEB’s award-winning book Employee Leave Laws: Compliance and Litigation.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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