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What’s the Dierence? Paid Sick Leave, FMLA, and Paid Family and Medical Leave
Paid Sick Leave, Executive Order 13706 (EO) Paid Sick Leave, State and Municipal Laws Family and Medical Leave Act (FMLA) Paid Family and Medical Leave (PFML)
Which
employers
have to
comply with
this law?
The EO applies to contractors that have any
of four types of federal contracts: contracts
covered by the Service Contract Act, contracts
covered by the Davis-Bacon Act, concessions
contracts, and service contracts in connection
with Federal property or lands. It also applies
to subcontractors of covered contractors if
the subcontract is also one of these types of
contracts.
While there are variations in existing paid sick
time laws, they usually apply to employers
with 15 or more employees.
The FMLA covers private sector employers with 50 or
more employees; public agencies, including a local,
state or federal government agency, regardless of
the number of employees they employ; and public or
private elementary or secondary schools, regardless of
the number of employees they employ.
Because PFML programs act as insurance and
workers typically pay into a fund that provides wage
replacement to leave-takers, there are no employer
coverage rules and no carve-outs or exemptions for
small employers.
Who can
workers
take leave
time to
care for?
Workers can take paid sick leave to care
for oneself or the employee’s child, parent,
spouse, domestic partner, or any other
individual related by blood or affinity whose
close association with the employee is the
equivalent of a family relationship (which
includes a grandparent, grandchild, brother-
or sister-in-law, fiancé or fiancée, cousin,
aunt, or uncle, as well as other people with
whom the employee has a significant personal
bond that is or is like a family relationship,
regardless of biological or legal relationship).
Details vary under different paid sick
time laws, but generally workers can care
for oneself as well as parents, children,
grandparents, and grandchildren. Some states
or towns may allow leave for more family
relationships or the equivalent of family
relationships.
Workers can take leave for the birth of a child and to
bond with the newborn child, for the placement of a
child for adoption or foster care and to bond with that
child; to care for a spouse, child or parent who has a
serious health condition; and if the employee is unable
to work because of a serious health condition. Leave
may only be used for the care of an adult child with a
serious health condition if the son or daughter is also
incapable of self-care due to disability. Under FMLA
military family leave provisions, workers may also
take leave to care for a covered servicemember with
a serious illness or injury if the worker is the spouse,
parent, child, or next of kin of the servicemember or
for certain qualifying exigencies while the employee’s
spouse, son, daughter, or parent is on covered active
duty or call to covered active duty status.
Generally, under a paid family leave program, workers
can care for a spouse, domestic partner, parent, or
child. Some states will provide benefits for caregiving
for grandparents, grandchildren, siblings, or parents-
in-law. Under TDI programs, a worker can receive
benefits only for your their serious medical problem.
Can workers
go back to
their jobs
after their
leave time?
Yes, workers can go back to their jobs: the
EO provides “job protection,” meaning
workers cannot be fired, retaliated against,
or discriminated against for asking to use or
using their paid sick leave.
Yes, workers can go back to their jobs:
the laws usually provide “job protection,”
meaning workers cannot be fired, retaliated
against, or discriminated against for using
their paid sick leave time.
Yes, upon return from FMLA leave, an employee
must be restored to his or her original job or to an
equivalent job with equivalent pay, benefits and other
terms and conditions of employment. An employee’s
use of FMLA leave cannot be counted against the
employee under a “no-fault” attendance policy or
used as a negative factor in an employment action,
such as hiring, promotions, or discipline. It is unlawful
for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise any right
provided by the FMLA.
Under TDI programs, no, there is no job protection
(however, the FMLA job protection may apply). Under
paid family leave programs, sometimes. Rhode Island
requires (and New York will require) that leave-takers
be able to return to their jobs. In California and New
Jersey, the laws don’t provide job protection, so
whether workers can return is up to their employer (or
the FMLA’s job protection may apply).