When an employee requires a leave of absence because of a medical issue or disability, the situation is not always straightforward, and the best way to manage it is not always clear. Adding to the confusion employers face is an ever-changing alphabet soup of federal and state laws and regulations, starting with the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Not knowing the ins and outs of leave-management can put your business in jeopardy, resulting in costly fines and lawsuits.
Here’s a real world example:
Mark works in your Quality Department. He is a solid performer and has been with your company for more than 6 years. While at lunch with several managers, Mark mentions that he is exhausted because he has to take his son to chemo-therapy appointments. His supervisor, Joe, hears his comment, but he’s already given notice to leave the company, so he’s not concerned that Mark has been missing a lot of work. Soon after the new manager arrives in the Quality Department, she writes up Mark for excessive absenteeism and assigns him to a part-time schedule.
Did Mark give enough information to indicate that his absences may be protected under FMLA?
In fact, by mentioning the serious medical condition of his son, he has put his company on notice that he may qualify for FMLA.
Should Joe have done something differently at work to protect himself and the company?
Joe should have recognized that the absences may be covered under a leave of absence law and should have reported in to management or Human Resources.
Is the company at risk?
Yes! A disciplinary action based on his absences could put the company at risk for a lawsuit for discrimination under FMLA. Help!
Further Reading: The Ultimate Guide to HR Acronyms and Initialisms
Today, organizations must consider the many laws that may govern a job-protected leave of absence, in addition to their own policies relating to paid or unpaid time off. Factors such as the organization size, location, and the reason the employee needs time off, may affect an employee’s right to a leave of absence. Employment laws governing job-protected leaves include Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), Pregnancy Discrimination Act, and worker’s compensation laws. Human Resources professionals can help management navigate through the sensitive nature of the employee’s issue and the organization’s obligations. Every situation should be analyzed based on the employee’s situation, and whether their reason is covered by a law or company policy.
There are mandatory and voluntary types of leave. A leave is mandatory based on federal and/or state laws. There are factors for each leave that will determine if your company must, by law, provide a job-protected leave of absence to your employees.
The areas of regulated leaves include:
The Federal Family Medical Leave Act (FMLA) is required for employers with 50 or more employees. The leave allows eligible employees to take up to 12 weeks off of unpaid FMLA leave for certain qualifying events. Employers must continue health care benefits during the leave (as long as the employee maintains payment for benefit premiums) and the employee must be reinstated to their former position, or equivalent, when they return to work. Some states have passed additional Family/Medical leaves that will need to be taken in to consideration.
Employers are required to grant leave time for employees who are called for civic duty. Some states have requirements that employees pay cannot be docked when employees are on jury duty. Several states have passed laws that also require leave for an employee to act as a witness. This leave may be paid or unpaid depending on your state’s law.
Time Off to Vote
Some states have passed laws that require employers to make a certain amount of time, paid or unpaid depending on the state, on election day to vote.
Employers must grant a leave of absence to an employee who is drafted or voluntarily enlists in the U.S. Armed Forces, or who volunteers for the National Guard or Military Reserves.
Paid Sick Leave
Numerous states and municipalities have passed mandated paid sick leave laws over the last few years. It is important to know if your state requires it and to make sure that your handbook is in alignment with the requirements. If you are in a state that does NOT have PSL, you may choose to offer a Sick Pay Policy (or Paid Time Off policy which includes sick time). The amount earned would be governed by a company policy.
This leave is to allow employees to have time off when they experience a death in the family. Some states have mandated bereavement. If you are not in a state that mandates it, then this policy would be voluntary and the specifics would be defined in your policy.
Certain states have employment laws that govern leaves. This is just an example. Please check with a Human Resources professional for laws applicable to your company.
Further Reading: How To Avoid These Six Common HR Nightmares
Leave policies that are voluntary and are implemented for the benefit of the employee per company policy include:
Vacation/Paid Time Off
This is considered a benefit earned as employees work for the company and allows for employees to take time off with pay for short-term absences and vacation. Check your states guidelines on if this needs to be paid out at termination.
Company policy will determine if holidays, paid or unpaid, are taken by employees for private companies.
Companies may choose to offer time off for reasons that may not be covered under mandated laws, because they are not eligible for a mandated leave, or because they have exhausted their Paid Time Off.
In addition to knowing what leave laws you must provide for your employees, you also need to know that there are other laws that may come in to play when an employee asks for time off.
The first is Worker’s Compensation (W/C). Worker’s Compensation is governed by state law. If you have an employee injured on the job, they may be entitled to medical leave (FMLA if you are over 50 employees). There are many factors and scenarios for W/C, but specific to a medical leave, if it involves an FMLA-covered employer with an FMLA-eligible employee and a medical leave is required by the treating physician, the FMLA time should run concurrent with W/C benefits.
The second is the Americans with Disabilities Act (ADA). ADA is a Federal law that prohibits discrimination against individuals with disabilities and required employers to provide reasonable workplace accommodations (so long as it is not an undue hardship) to qualified applicants and employees with disabilities. This law applies to private employers with 15 or more employees. The ADA may work concurrently with FMLA or it may be applicable all of its own. In addition, an extension of a leave of absence may be necessary under the ADA. It is important when an employee requests time off for a medical reason, determine an employee’s eligibility under ADA, FMLA, and/or any state leave laws separately.
As you can see, there are a multitude of factors to consider when an employee requests time off from work. It is also important to know how to manage the day-to-day absences from day one until the granted leave is complete. To ensure compliance of changing leave laws, make sure you audit your practices and update your handbook regularly. Ensure you have a single point of contact at the company to review and approve/deny leave requests so that you are consistently applying your policies and complying with relevant employment law.