The Family and Medical Leave Act (FMLA) of 1993 marked the first mandatory leave in American workplaces. The FMLA applies to employers with 50 or more employees within a 75-mile radius, provides up to 12 weeks of unpaid leave per year for birth or adoption of a child and/or “serious” medical condition of the employee or a close family member. The FMLA provides for unpaid leave, but the concept of paid leave has enjoyed some limited bipartisan support for some time.

As far back as 2018, Senator Marco Rubio proposed a bill that would have permitted parents to apply for two months of paid leave by delaying receipt of Social Security benefits. At about the same time, Senators Joni Ernst and Mike Lee joined in a proposal similar to Rubio’s. Senators Kyrsten Sinema and Bill Cassidy proposed the first bipartisan bill. It did not mandate leave but would provide access to $5,000 through reduction of the l child tax credit. However, each of these bills failed to make any progress.

At least 14 states and the District of Columbia have enacted paid leave legislation. Most of the states grant 12 weeks of paid leave. In 2021, Maine became the first state to mandate paid employee leave of up to 40 hours for any purpose. Likewise, with no federally mandated sick leave, several states have adopted mandatory paid sick leave programs. Currently 11 states require paid sick leave.

Difficult leave issues

Granting employees leave, whether FMLA or otherwise creates recordkeeping issues that can prove troublesome. FMLA leave certification requirements is one instance in which employers sometimes falter. Upon becoming aware of the possible need for FMLA leave, employers must notify the employee if medical certification to substantiate the need for leave is required. The notice should be included in the written Rights and Responsibilities Notice that is required to be given to the employee within five days of becoming aware of the employee’s potential need for FMLA leave. The employer must then notify the employee in writing if leave will or will not be FMLA-covered. Potential notice problems can be avoided if employers simply utilize the forms available from the Department of Labor that contain the required information and are a sure way of tracking compliance.

Recertification requests

Employer requests that an employee on FMLA leave recertify the continuing need for leave can prove thorny for employers. An employer has the right to request that the employee provide recertification of their serious health condition or that of their family member every 30 days, and only when the employee is actually absent or has requested to be absent.

FMLA absences and attendance policies

Another potentially tricky task in managing employee leave is the interplay between FMLA absences and the employer’s attendance policy, which frequently arises when leave is taken on an intermittent basis. Legitimate FMLA-related absences from work cannot be considered violations of an attendance policy. However, employers may require employees using FMLA leave to comply with the usual absence notice procedures, unless they are medically unable to do so. Failure to properly give notice of a need to be absent, even if it relates to a serious medical condition for which the employee has been granted intermittent leave, can result in lawful disciplinary action.

As mandatory leave laws continue to proliferate, especially at the state level, and perhaps even at the federal level in the near future, employers will increasingly be confronted with demanding obligations under the various leave laws.