Leave of Absence for Small Employers Not Covered by FMLA

paperclip-178126_1920Employers with 50 or more employees must offer eligible employees up to 12 weeks of unpaid leave under the Family Medical Leave Act (FMLA). But what about employers with less than 50 employees? Are they required to provide a leave of absence to an employee with an illness or injury or to an employee who has a family member with a serious illness or injury? Quite possibly. There are a number of federal and state laws which may require an employer to provide a leave of absence, even when the employer is not covered by FMLA.

The first example is the federal Americans with Disabilities Act (ADA) which applies to companies with 15 or more employees. The ADA prohibits an employer from discriminating against an individual with a disability. A person with a disability is defined under the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activity. Many serious illnesses and/or injuries could be considered disabilities under the ADA. If the employee does have a disability but can otherwise perform the essential job duties of their position, with or without an accommodation, they are protected under the ADA> The employer and the employee must participate in an “interactive process” where they openly discuss and determine the best accommodation reasonable for the employee and employer. This may include a leave of absence. If a leave of absence is granted under the ADA, it does not need to be paid and should be treated the same as any other leave of absence.  The ADA is a very complicated law and employers may consider consulting with an employment law attorney before making any decisions regarding an individual with a potential disability to ensure compliance.

While the federal ADA only applies to employers with 15 or more employees, some states have their own laws regarding individuals with disabilities. For example, in Michigan all employers, regardless of size, are prohibited from discriminating against an individual with a disability. It’s important to familiarize yourself with any state or local laws regarding disability.

Continuing with state and local laws, there are many laws that require employers to provide their employees with a leave of absence for a variety of reasons. A few examples are briefly described below but this is nowhere near a complete listing. Check the leave requirements in your state to be sure you are in compliance:

  • Massachusetts Parental Leave Law: Requires employers with 6 or more employees to allow up to 8 weeks of leave to eligible employees following the birth or adoption of a child. (For more information, click here).
  • Maryland Flexible Leave Act: Requires employers with at least 15 employees to allow employees with paid time off (PTO) available to use the PTO to care for a parent, spouse or child with an illness.
  • Vermont Parental and Family Leave Act: Requires employers to provide eligible employees with up to 12 weeks of parental leave (employers with 10 or more employees) or family leave (employers with 15 or more employees).
  • California Pregnancy Disability Leave: Requires employers with 5 or more employees to allow an employee disabled due to pregnancy a reasonable period of time off (up to 4 months). (For more information, click here).
  • Connecticut Pregnancy Disability Leave: Requires employers with 3 or more employees to provide a “reasonable” leave of absence for disability resulting from pregnancy. (For more information, click here).

There are also a growing number of states and cities requiring employers to provide their employees with paid sick leave. Some of these states and cities also require the employer to allow employees to use some or all of this paid sick leave to care for an ill family member.

Even when you have no legal obligation to provide an employee with a requested leave of absence, you may still want to consider allowing the leave if the business can still operate smoothly. This will show your employees that you care about them and their personal lives and will have a positive affect on employee morale.

Like with other policies, you need to remain consistent with the implementation of your policy on leaves of absences to avoid a potential discrimination complaint. You should decide how benefits will be handled during the employee’s absence, how often the employee should communicate with management regarding their absence, whether the employee will be reinstated to the same position or a different position, etc.

Be sure to familiarize yourself with all federal, state and local laws that affect your business before denying a leave of absence to your employees.