New laws on family and sick leave have recently been introduced in many states, and retaliatory protections for employers pose a high risk of legal action. In addition to providing workers with these new forms of likely sheltered leave, employers must ensure that anyone who receives them is protected from all forms of retaliation.
To date, Washington DC and nine states have enacted some form of family vacation, medical vacation, or both. Two other states, notably South Carolina and Indiana, are currently considering such legislation and could soon enact similar laws. This means that many employees can currently take advantage of such sheltered leave, and there will likely be more soon.
It should be a high priority for employers to ensure that workers do not suffer retaliation during this leave. This has proven to be a significant problem in recent years, as EEOC statistics from earlier this year show that 55% of all charges filed with the agency are aimed at retaliation for engaging in a protected activity. Most government agencies reported very similar statistics.
The majority of these state vacation laws currently in place contain at least some form of precaution to protect workers during use and to prevent retaliation from employers. These states include New York, New Jersey, Washington DC, Rhode Island, Massachusetts, Colorado, and Oregon.
Among these states, Massachusetts stands out for having a provision that allows retaliation if the employee’s status, compensation, seniority, and other terms of employment are adversely affected. This applies not only during the employee’s leave of absence, but also during the six months after his return. However, an employer can only overcome this assumption with clear and convincing evidence, which could be difficult for many employers.
At the other end of the spectrum, both Connecticut and California do not offer employees direct protection from retaliation; However, it can be argued that existing anti-retaliation laws to protect unpaid family leave apply to these new paid forms of family leave.
Employers should remember to exercise caution when making decisions that affect employees who have applied for, taken or recently returned from a new form of leave, even in decisions that appear to be have nothing to do with such a vacation. In the event of retaliation, these decisions are likely to be scrutinized by the courts and government agencies. Employers should make sure they understand these new vacation laws and their safeguards, and ensure that those who manage workers’ vacation, as well as those who are able to make employment decisions, understand how to deal with them.
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