According to a recent survey,1 more than 85 percent of employees decide to accept and continue employment with a particular employer because of the benefits offered by that employer. Paid leave is one of the primary benefits employers offer to attract and retain great employees. Some amount of paid leave, whether referred to as paid vacation, personal leave, sick leave, or something else, is a must in today's workplace. Proof of this is the fact that over half of all employees report having access to some form of paid leave when sick,2 despite the fact that private employers in only four states are presently required by law to offer paid sick leave.3 Indeed, the sheer number of employers voluntarily offering some amount of paid leave to employees is evidence of the benefit to employers in doing so.
Notwithstanding the benefits, the offering of paid leave unequivocally creates a myriad of legal issues for employers. By way of example, when an employer decides to offer paid leave, the employer must decide and address issues relating to the accrual or carrying-over of paid leave, the right of an employee to be paid for the leave upon separation of employment, and the policing of the use or misuse of paid leave. Employers must also be careful to offer and apply paid leave policies in a non-discriminatory manner. By way of example, employers who offer new mothers more paid time off than new fathers may face legal action.4 The legal issues associated with paid leave policies may be the reason why some employers refrain from putting paid leave policies in writing, and, instead, prefer to address requests for paid leave informally and on a case-by-case basis.5 This, of course, creates its own set of legal issues.
Employers that feel the urge to get rid of paid leave in an attempt to avoid the related legal issues should think twice. The failure to offer paid leave also has its own set of legal issues. By way of example, consider the consequences of trying to deduct the pay of a salaried, exempt employee who does not show up for a partial day of work due to his or her need for personal leave. Also consider the consequences to employee recruiting and retention of a "no paid leave" policy, and, then, start working on your paid leave policy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.