#ArizonaRestaurantWeek Labor and Employment Law Series – Restaurant Employers: Tips on Protected Leave Rights (Blog 5 of 5)

By Chris M. Mason, Attorney, Jennings, Strouss & Salmon, P.L.C.

Finalizing our Arizona Restaurant Week series, below are tips on protected leave rights to avoid costly fines and litigation in the workplace:

Tip 1:   Arizona employers must provide ALL employees with paid sick leave

Full-time, part-time, and temporary hourly employees are guaranteed up to 5 days (depending on employer size) of paid sick leave per year. Sick leave must accrue at least at the rate of 1 hour of leave for every 30 hours worked, up to the minimum number of days required by law.

Tip 2:  Employers must track each employee’s accrued leave time and disclose available and used time with every paycheck

Arizona’s sick leave law requires employers to provide employees with notice of the amount of paid sick leave that is used and available in writing with every paycheck. For this and other reason, proper leave tracking is absolutely essential in ensuring compliance with paid leave regulations. In addition, FMLA leave requires employers to issue proper notices and certifications, validate absences, and track employee unpaid leave. Waiting until after an employee has used an excessive amount of leave can cause serious issues and impact an employer’s ability to police its workforce.

Tip 3:  The Family and Medical Leave Act (FMLA) requires that employers with 50 or more employees in a 75-mile radius also provide them with unpaid leave for qualifying reasons

Employers with 50 or more employees working within a 75-mile radius are required by the FMLA to provide up to 12 weeks per year of unpaid leave to qualifying employees for qualifying reasons, such as the arrival of a new child to the family (whether by birth, adoption, or foster care), the employee’s serious illness or injury, and to care for family members with serious illness or injury.

Tip 4:  Employers need to consider ALL employees in the area for the 50-employee threshold, including seasonal, part-time, and management

Employers close to the FMLA 50-employee threshold requirement should be sure to evaluate their numbers before deciding the FMLA does not apply. Part-time, seasonal, and management employees are all part of the employee threshold, as are most employees on a leave of absence. An area that is a major issue for employers is the employees that have been misclassified as independent contractors. Employers should keep in mind that the “full-time equivalent” test to evaluate the 50-employee requirement provision of health coverage under the Affordable Care Act is a different test than that used for the FMLA.

Tip 5:  An employer’s leave rights policy should be visible and easily accessible to all employees

Employers should have written policies for all types of leave, including paid sick, FMLA, voting, and jury duty leave. These policies need to be posted in visible areas within the workplace and included in the employee handbook.

Tip 6: Employers should have a trained human resources professional designated to track, manage, and coordinate leave time

Employers should consider training and designating a dedicated human resources professional to handle all leave issues. This may not be practical for smaller employers; however, it is still important to have one person who is responsible for these duties. Larger employers should recognize that the responsibility is both challenging and paramount when managing employee attendance, and if not handled properly, could cause hefty fines, lawsuits, and other issues.

Tip 7:  Employers should be wary of limiting employee work hours or imposing other unjustified limitations for employees returning from leave to avoid retaliation claims

Employers should handle the schedules of employees returning from a leave of absence with care. Keep in mind that you cannot “penalize” an employee for taking protected leave. Cutting hours may be considered retaliation and could lead to expensive litigation.

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