Does My Small Business Have to Offer Leaves of Absence to Employees?

When you hear the phrase “leaves of absence,” most people typically think of a serious health condition that may trigger the Family and Medical Leave Act (FMLA). But if your company is small with a tight budget, is your business off the hook for having to offer leave to employees? 

Surprisingly, even small organizations are required to offer certain types of federal and/or state leave to their employees. Here is a brief outline of what your company may need to offer.  

Federal Law: Employee Leave Requirements 

The four most common federal leave policies include the Uniformed Services Employment and Reemployment Rights Act (USERRA), Workers’ Compensation, the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA). 

Uniformed Services Employment and Reemployment Rights Act (USERRA) 

The Uniformed Services Employment and Reemployment Rights Act (USERRA), or military leave, requires employers of all sizes to provide leave for employees engaged in military service (voluntary and involuntary). Employees can choose to continue their employer-based insurance coverage for up to 24 months while on leave. 

If their cumulative service is less than five years, USERRA requires employees to be reinstated upon return to their former or comparable job with the same pay and benefits. 

Do I have to offer USERRA leave? 

If you have at least one employee, yes! You must comply with USERRA. 

How do employees qualify for USERRA? 

There is no minimum number of hours or years of employment for an employee to be eligible for USERRA protection. If a covered service member has a leave of absence for the uniformed services, USERRA mandates their employer protects their job.  

Workers’ Compensation 

The Department of Labor requires employers to offer workers’ compensation to employees as a form of wage and job protection while an employee is recovering from a work-related injury. Specific benefits offered by workers’ comp are regulated by individual states, with no specific limit for leave an injured employee may take. 

Do I have to offer workers’ compensation insurance? 

If you have at least one employee, yes! You must have a workers’ compensation policy that provides wage and job protection to employees who get injured on the job.  

How do employees qualify for workers’ compensation protection? 

Except for willful misconduct, self-inflected injuries, disregard to safety rules, or intoxication, any employee who is injured or becomes ill during employment is covered by workers’ compensation. There is no minimum number of hours or years of employment for an employee to be eligible for coverage. Certification from a health provider is typically required for leave and light duty requirements. 

Americans with Disabilities Act (ADA) 

The Americans with Disabilities Act (ADA) requires qualifying employers to make accommodations for employees with a disability, absent a due hardship. Modifications to an employee’s work schedule may include a leave of absence in which an employee must be reinstated to their job once they return to work.  

There is no specific limit for how much leave per the ADA an employee may take. This will be determined by an interactive process with HR (Human Resources), the employee, and the employee’s health provider to determine necessary accommodations and whether they may create an undue hardship on the employer. 

Do I have to offer ADA leave? 

If you have had at least 15 employees for 20 weeks during the year, you must comply with the ADA. 

How do employees qualify for leave per the ADA? 

There is no minimum number of hours or years of employment for an employee to be eligible for protection per the ADA. An employee who is qualified for the position (with or without a reasonable accommodation) may obtain a medical certification that states leave is a necessary accommodation. 

Family and Medical Leave 

The Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid leave over the course of 12 months. While on leave, their health insurance coverage will continue, with the understanding they will return to the same or a comparable job when their leave of absence expires. 

The following circumstances may qualify someone for FMLA leave: 

• Serious health condition (themselves or a family member) 
• Maternity/paternity leave for the birth or placement of a child for adoption or foster care, and to bond with the child 
• Care for a family member injured in military service 

Do I have to offer FMLA? 

If your company has at least 50 employees within a 75-mile radius, you are a covered employer that must offer FMLA leave. 

How do employees qualify for FMLA? 

Eligible employees must have worked at least 1,250 hours over the last 12 months before leave starts. They must also receive medical certification explaining the need for leave. 

If my company has less than 50 employees and/or an employee does not meet the eligibility requirements, do I still need to offer leave for the FMLA-related circumstances listed above? 

This depends on your state/municipality laws, your internal company policy, and/or whether your company has already set a precedent. Check with your Stratus HR rep for help with your situation. 

State Law: Specific Leave Requirements 

Some states require employers of various sizes to provide job-protected leave to employees in addition to or in conjunction with federally required leaves. 

Paid Sick Leave 

Many states and municipalities require employers to provide paid sick leave to employees. The specifics, such as accrual rates, usage, and employee/employer contributions may vary. For example, see Paid Leave Oregon (paidleave.oregon.gov). 

Paid Parental Leave 

While the FMLA covers unpaid maternity and paternity leave for larger employers, some states have their own requirements for small employers. In some cases, the size of employer determines the type of leave an employee may be eligible to take. 

Examples of *state-specific parental leaves of absence policies that may provide wage replacement benefits or additional unpaid leave options beyond FMLA include: 

• Pregnancy Disability and Baby bonding leave (CA): calcivilrights.ca.gov 
• Oregon Family Leave Act (OFLA): Oregon.gov 
• Washington State’s Paid Family Medical Leave: paidleave.wa.gov  
• Family and Medical Leave Insurance Program (FAMLI) (CO): famli.colorado.gov 

*This list is not all-inclusive. Please talk with your Stratus HR rep regarding your individual state requirements. 

Jury Duty Leave 

Employers are generally required to provide leave for employees to perform jury duty. While this is typically an agreement made between the employer and employee, some states may require jury duty leave to be paid. 

Bereavement Leave 

Some states or localities mandate that employers provide bereavement leave. Leave may or may not be paid and is typically subject to employer size. 

Voting Leave 

Some states require employers to provide time off for employees to vote in elections, particularly when they have work schedules that do not permit them to vote before or after work. 

Other State-Mandated Leave 

Various states have additional leave requirements, such as leave for victims of domestic violence, crime victims leave, or leave for certain family obligations. 

Company Leave Policies 

In addition to the federal, state, and local required leave laws, many employers offer personal leave policies as optional employee benefits. These may include: 

• *Personal or vacation leave 
• Sick leave 
• Holiday leave 
• Parental leave 
• Bereavement 
• Sabbatical 
• Non-health related leave of absence 
• Voluntary leave of absence (health related) 

*While personal time off is per the employer's discretion and not currently required to be offered by federal or state law, it may be subject to certain regulations regarding accrual and payout upon termination. Contact your Stratus HR rep for more details. 

If your company does not currently have a policy in place regarding employee leave but has previously allowed someone to take leave for any circumstance, this may be considered as having set a precedent. Please contact your Stratus HR rep regarding how to proceed with creating company policies for your employee handbook and/or responding to future leave requests to avoid claims of discrimination. 

For more information on whether your small business must offer paid or unpaid leave to employees, please contact your certified HR rep. Not a current Stratus HR client? Book a free consultation and our team will contact you shortly.