LEAVE AND TIME OFF FROM WORK

Time off from work can come in many different forms from annual leave, holidays and sick leave to a number of others. Each category of time off from work should be listed and a policy should be written that clearly explains who is eligible to accrue leave (annual, sick, personal, bereavement, etc.), how or when they become eligible, and in some cases (i.e., jury, trial, military, etc.) what types of leave will be with or without pay. Some states have laws regarding the payout of leave when an employee separates from employment. To avoid penalties and fines, check with a local labor attorney in your state to find out about state laws requiring employers to pay any accrued vacation upon termination or if vacation pay is included in the definition of wages. If either of these are the case, then annual leave payout policies cannot cap the amount of annual leave paid upon termination and any accrued vacation pay must be paid to an employee upon termination.

In addition, employers should be aware that exempt salaried employees’ pay cannot be docked in hourly increments except under very limited circumstances (i.e., FMLA leave).

• Annual Leave - each NPC should have a policy on annual leave. Many NPCs offer a tier system of earning annual leave (i.e., the greater number of years of service, the more annual leave an employee is given). Annual leave is usually accrued at a specified number of hours per pay period. It is highly advisable to put a cap on the amount of annual leave that an employee can carry over from year to year and maybe even a policy that will cap the amount of money paid out if an employee should leave the NPC. Annual leave is considered a liability and the actual dollar value of the leave and the employer’s taxes should be calculated for each employee quarterly or at the end of the fiscal year.

• Holiday Leave - Although employers may not be required to give employees time off for the observation of holidays, NPCs may want to grant employees the same holidays offered to federal employees. Since employees of the NPC may be working side by side with employees of the VA or the university, providing similar holiday benefits will result in a more collegial atmosphere. The following holidays are commonly observed by employers:

Plus any additional holidays granted to the VA employees (given by the President)

• Floating Holiday - allows employees to choose when they can use a floating holiday (i.e., Day after Thanksgiving, New Years Eve, their birthday, etc.)

• Sick Leave - Each NPC should have a policy on sick leave. Sick leave may be offered through the tier system (i.e., the greater number of years of service, the more sick leave an employee is given) or could be given as flat number of 12 days per year for each employee, prorated for part-time employees. Unlike annual leave, in most states sick leave does not have to be paid out when the employee separates from employment. Therefore, the amount of sick leave an employee can accumulate generally is not capped. A loyal employee will then be able to use accumulated sick leave in the event of long illness.

• Jury Duty/Trial Witness Leave - Both federal and state laws prohibit an employer from discharging an employee for service on a state or federal jury. Employers may not punish or retaliate against an employee for fulfilling this civil duty but no law governs the amount of compensation paid to the employee by the employer during jury service or the length of time the organization must compensate the employee, although federal law requires employers to maintain the same level of benefits and seniority as for any approved absence. NPCs may want to have a policy regarding jury duty that includes the requirement for the employee to provide proof of service

• On occasion an employee may be asked to testify as a witness in a trial. If the NPC wishes to allow an employee time off to fulfill trial witness obligations, a policy should be in place informing the employee of their right to the leave and whether an employee will be entitled to receive pay.

• Military Training - The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 is the federal statue that informs all employers of the rights for uniformed service military leave. Any employee in a uniformed service, voluntary or involuntary (i.e., active duty, active duty training, inactive duty training, initial active duty training, funeral honors duty performed by National Guard and reserve members or time off for a military service fitness exam) is covered including: U.S. Army, Navy, Marine Corps, Air Force, Coast Guard and Public Health Service commissioned corps and their reserve components, Army National Guard, and Air National Guard. Employers are not required to compensate employees on military leave, they cannot refuse to grant an employee time off. The law also covers other benefits issues like COBRA-like continuation of health benefits, etc. Also state regulations may differ from federal law, check with your state or a local labor attorney for state specific regulations on military leave.

• Leave of Absence - NPCs may want to consider a leave without pay policy when an employee requests a leave of absence when they have depleted their sick, vacation and personal time off and when they may no longer be eligible for time off through FMLA. If an NPC decides to have such a policy, the policy should inform the employee about eligibility (who and when), maximum duration and continuation of benefits during the leave of absence.

• Bereavement Leave - NPCs may want to have a policy for leave in the event of the death of an employee’s immediate family member (spouse, mother, father, brother, daughter, son, step-children, step-parents, grandchildren, grandparents, mother- and father-in-law, sister- and brother-in-law, and daughter- and son-in-law). The policy should inform the employee about their obligation to notify the supervisor and NPC, any requirements of evidence of death and relationship of the deceased before leave is paid, and the number of days given. Most employers grant three days off for bereavement leave. An organization may decide to give fewer days for relatives who are not members of the immediate family.

• Voting Leave - Some states have a law requiring an employer to provide employees with time off to vote in local, state and national elections. If an NPC desires to offer time off when the state does not have such a law, NPCs may want to consider placing a provision in their handbook. The policy should state the amount of time allotted for such leave and whether the employee will be entitled to receive pay while on voting leave.

• Compensatory Time - Comp time is not required by law. Generally, an organization cannot award comp time to a nonexempt employee in lieu of overtime pay. Comp time may be provided to exempt employees only in full day allotments, not hours.

• Family and Medical Leave Act Leave - As stated in the “Workplace Practices” section of the Best Practices Program, pursuant to the federal Family and Medical Leave Act (“FMLA”), employers who are covered under the law, and also distribute an employee handbook to employees, must include a provision in their handbook that addresses employee rights and obligations under the Act.

• Weather-Related Closure - Provides a policy that instructs employees in the event of inclement weather.

• Emergency Closure - Provides a policy that gives clear guidance to employees in the event of an area wide (not personal) emergency (i.e., earthquake, fire, flood, etc.)

• Administrative Leave - This type of leave is also found in discharge policies as part of a progressive discipline program. An organization may decide to include this policy in the misconduct section and label it “suspension with pay.”

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last updated: 01/31/08

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