Leave legislation in the United States is evolving at an alarming rate, with a growing emphasis on paid leave, expanded eligibility, and broader definitions for the types of leave employees can take. As of this writing, eleven states and over thirty municipalities have protected leave laws in place, in addition to the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) regulated at a federal level. Looking at the leave trend of state regulations alone, there has been an 1800% increase in the last ten years. Seven states have passed protected leave laws that will go into effect over the next three years, and the trend is not slowing down. It should be no surprise that 2021-2022 saw a 21%-40% rise in employee leave requests, with 2023 expected to hit 41-60%.
This has profoundly impacted employers who must keep track of employee leave, often across multiple states with differing regulations, to remain compliant and mitigate risk and the financial impact on their organizations.
What are the key leave trends employers should be aware of:
- Paid family and medical leave.
Many states have implemented or are considering paid family and medical leave programs, which provide paid time off for employees to care for themselves or their family members during medical emergencies or to bond with a new child. The eligibility requirements, qualifying events, and definitions of who qualifies as a family member vary considerably.
- Paid sick leave.
Some states and localities have adopted paid sick leave laws, requiring employers to provide employees with a certain number of paid sick days. These laws often vary by jurisdiction in terms of accrual rates and usage and must often be applied to intersecting family and medical leave regulations as well.
- Expanded eligibility and types of leave.
Many jurisdictions have expanded eligibility for leave benefits to cover more types of employees, including part-time and gig workers, and broader definitions of who qualifies as a family member. There is a growing trend toward uniquely codifying military leave and reemployment rights for servicemembers. Some states have enacted laws that provide leave for victims of domestic violence or sexual assault.
- Flexible Work Arrangements.
Some states and localities have implemented laws that allow employees to request flexible work arrangements, including alternative schedules or remote work options. This is paralleled by an unprecedented trend toward organizations adopting a distributed workforce model adopting remote and hybrid work environments.
What do employers need to do to comply with increased leave legislation?
Complying with expanding leave laws, whether at the federal, state, or local level, is essential for employers in the United States. Here are steps employers can take to ensure compliance with these evolving regulations:
- Stay informed and understand applicable laws.
Continuously monitor changes in leave laws at the federal, state, and local levels. Familiarize yourself with the specific requirements of the leave laws that apply to your organization. This includes knowing the eligibility criteria, reasons for leave, accrual rates, usage limitations, notification timelines, and reporting mandates. Ensure you have a scheduled process to conduct regular internal audits and self-assessments to identify any compliance gaps and address them promptly. We recommend subscribing to relevant government agencies and service providers specializing in employment law that offer searchable legal databases or provide regular legal updates. Related article: 5 leave management resources every employer should know about
- Review and update policies.
Review and update your leave policies and employee handbook to reflect and comply with regulatory changes. Ensure that your policies align with federal and state regulations and any additional states or municipalities where your employees work. If your organization offers remote work options, ensure that your leave policies and procedures account for remote employees.
- Train HR and management and notify employees.
Provide training to HR personnel and supervisors on the company’s leave policies and legal obligations. Ensure they understand how to handle leave requests, including required documentation and approvals. Communicate leave policies to employees, including their rights and responsibilities. Provide written notice of their rights under relevant laws when required.
- Create a clear leave request process.
Establish a straightforward process for employees to request leave, including forms, how and when to submit requests, how leave balances are tracked, and who approves requests. Be prepared to handle accommodation requests under the Americans with Disabilities Act (ADA) or similar state laws when employees require leave due to disabilities or medical conditions. Communicate this process to all employees.
- Record-keeping, documentation, and reporting.
Maintain accurate and up-to-date records of all leave requests, approvals, denials, and balances. Ensure comprehensive documentation of all leave-related decisions, including reasons for denial and any accommodation efforts. Be prepared to provide clear reports when requested. Effective record-keeping is crucial for demonstrating compliance in case of audits or disputes, as well as curbing leave abuse.
- Consider Leave Management Software.
We highly recommend exploring leave management software to streamline the administration of leave requests, track balances, and ensure compliance. Leave management software minimizes human error and keeps all leave information in one place.
- Third-party consultation and leave administration outsourcing:
Seek help from HR experts or attorneys specializing in employment law to ensure your policies and practices fully comply with all relevant laws and regulations. If you lack the bandwidth or internal resources to manage leave effectively, consider leave administration outsourcing. This is an affordable option that offloads the burden of compliance to specialists who ensure up-to-date procedures.
Complying with expanding leave laws requires proactive effort, ongoing education, and a commitment to staying informed about changes in employment regulations. By taking these steps, employers can mitigate risks, create a fair and legally compliant leave management system, and foster a positive work environment.