Leave Policies in the Workplace FAQ

Learn the basics about what paid and unpaid leave you must provide to your employees.

Am I legally required to offer paid vacation and sick leave to my employees?

No. Many employers are surprised to learn that they are not legally required to give their employees paid time off. Despite this legal leeway, however, most employers do offer some variety of paid leave. A generous leave policy can help you attract high-quality employees and improve office productivity and morale.

If you decide to adopt a policy that gives your employees paid vacation or sick time, be sure to apply the policy consistently to all of your employees. If some employees receive a more attractive package than others, you might be vulnerable to a discrimination claim.

I run a small business and cannot afford to have my employees on leave for months at a time. Do I have to provide family and medical leave?

It depends on how small your business is. The federal Family and Medical Leave Act (FMLA), which requires employers to give 12 weeks of unpaid leave in certain circumstances, applies only to companies that employ more than 50 people within a 75-mile radius. If your company doesn't meet these conditions, you do not have to provide leave under the FMLA.

However, many states also have family and medical leave laws, and these often apply to smaller business. So even if the FMLA does not apply to you, your state's law might. To learn more about your state leave law, contact your state labor department.

Am I legally required to give my employee leave to care for a sibling?

Not by federal law. The federal Family and Medical Leave Act (FMLA) requires you to grant leave for your employees to care for seriously ill family members, and it defines family members as parents, spouses, and children. (Parents include those persons who took the place of a parent when the employee was a child; children include those children whom the employee cares for and supports.) The definition, however, does not include many people that most of us consider family members, including grandparents, aunts and uncles, in-laws, same-sex partners, or siblings.

If your state has a family and medical leave law, it might require leave to care for siblings. To find out about your state's law, contact your state labor department.

How can I find out if my employee really has a serious health condition?

The Family and Medical Leave Act (FMLA) allows you to ask your employee for a doctor's certification -- a written statement from a doctor giving certain details of the employee's illness, including the expected duration, diagnosis, and treatment plan. You also have the right to seek a second opinion and perhaps a third.

Do I have to let my male employees take paternity leave?

It depends. If your business is covered by the Family and Medical Leave Act (FMLA) and the employee is eligible for leave, you must allow the employee to take up to 12 weeks of leave to care for a new child. This leave is unpaid and must be taken within a year of the child's arrival.

Generally, employers are not required to offer paid leave to either parent after a child's birth. However, if you do offer a paid maternity leave benefit, you must offer this leave to new fathers as well as mothers or risk a lawsuit for sex discrimination. In other words, if you offer paid leave, it must be parental leave, not maternal or paternal leave.

In addition, the state of California now provides six weeks of paid family leave to new mothers and fathers. This state program is funded by employees, through payroll withholding. Many others states are considering paid family leave laws as well.

Do I have to give my employees time off for National Guard training or other military service?

Most likely. In almost every state, employers must allow their employees to take leave for certain types of military service. In some states, only those called for active duty are entitled to take leave; other states require leave for training as well. You are not required to pay your employees for this time off.

Do I have to pay my employees for time spent voting?

This issue is governed by state law, so the answer depends on where your workplace is. Almost half of the states require employers to provide a few hours of paid leave to allow their employees to vote. Generally, paid leave is required only if the employee would have insufficient time to vote without taking time off.

Even if you live in a state that does not require paid leave for voting, you must not punish any employee for taking time off to cast a ballot. Almost every state prohibits employers from firing or disciplining an employee for taking leave to vote.

One of my employees just got called for jury duty. If she gets seated on a jury, can I replace her?

If you are asking whether it is legal to fire an employee for serving on a jury, the answer is no. Almost every state prohibits employers from firing or disciplining an employee for being called to jury duty. In some states, an employee fired in violation of these laws can sue you for lost wages. In addition, a handful of states impose criminal penalties against employers who break this law.

However, most states do not require you to pay your employees for the time they spend on jury duty, unless your own employment policies provide for such pay. Perhaps with the money you save on the employees' wages or salary, you can afford to hire a temporary replacement worker to fill in until the jury reaches a verdict.