As a human resource professional, it is very important to know everything there is to know about employee leave of absence.

Being conversant with the legal requirements when it comes to employee leave of absence will help you minimize the effect of employee absence on your business, while at the same time ensuring that employees have time to deal with personal and medical issues.

This is especially important when you consider that absence by a single employee can cost a company up to $3,600 per year, according to a publication published by Circadian, a workforce solution company.

Understanding everything that comes with employee leave of absence also makes it easier for human resource professionals to keep track of all the various types of leaves, as well as what is required of the company when an employee takes the leave of absence.

It also helps protect the company from costly litigation that could arise in case an employee files a dispute for not having their leave of absence treated as it should.

To help with this, we have put together a comprehensive guide that will teach you everything you need to know about employee leave of absence.

WHAT IS LEAVE OF ABSENCE?

A leave of absence is a period of time when an employee is permitted to be absent from work without losing the status of employee.

Generally, employees ask for a leave of absence in order to deal with unusual or unexpected personal circumstances.

The term leave of absence does not typically include other periods away from work that are covered under an employee’s existing benefits, such as sick leave, paid time off, and paid holidays and vacations.

There are two types of employee leave of absence: mandatory and voluntary.

MANDATORY LEAVE OF ABSENCE

Mandatory leaves of absence are leaves that are governed by federal and/or state laws.

Under mandatory leaves of absence, it is mandatory for the employer to grant the leave of absence to an eligible employee under the circumstances stipulated in the laws governing the leave of absence.

Mandatory leaves of absence are usually granted for medical reasons, though there are other circumstances that are also covered, such as military duty.

It is important to note that the laws governing mandatory leave may or may not apply to your company, depending on the number of employees and where an employee is working.

Below are the different types of mandatory leave of absence.

Medical Leave of Absence

This is a leave of absence that is granted to employees to allow them to deal with medical/health related issues. Medical leaves of absence are usually covered by the Family and Medical Leave Act (FMLA) of 1993.

Under the act, an employee is entitled to up to 12 weeks of unpaid leave per year, during which the employer is expected to hold the employee’s job.

FMLA leave may be granted for a number of family related and medical reasons, such as childbirth, caring for an infant within one year of birth, or adopting and providing a child with foster care within the first year, dealing with a health condition that makes it impossible for the employee to do their job, caring for a family member (child, parent, or spouse) with a critical health condition, and certain military reasons, such as caring for a service member.

In order for an employee to be eligible for FMLA leave, they must:

  • Work for an employer who is covered by the FMLA act.
  • Have worked for the employer for 12 months or more.
  • Have worked with that employer for at least 1250 hours within the preceding 12 months.
  • Work at a location where the employer has 50 or more employees working within a 75 mile radius from the employee’s worksite.

Is Your Company Required to Comply with the FMLA?

Your company is required to comply with the FMLA if:

  • It is a covered employer.
  • It has eligible employees who qualify for FMLA leave.

Covered Employers

Any private sector employer with 50 or more employees for at least 20 weeks in the current or preceding year is covered by the FMLA.

The 50 or more employees includes employees employed under seasonal, temporary, or part-time contracts.

Government and other public agencies, as well as schools are covered by the FMLA regardless of the number of employees they have.

Eligible Employees

In order for an employee to be eligible to FMLA leave, they must work for an employer with 50 or more employees within a 75 mile radius from the employees work location, they should have worked for the employer for 12 months or more, and they should have worked for the employer for not less than 1250 hours during the 12 months preceding the FMLA leave.

Employers are allowed to request for a medical certification from a doctor or other health professional before granting FMLA leave.

Employee Rights Under FMLA

An employee is allowed to take up to 12 weeks of unpaid medical leave within a 12 month period.

Once the employee is back from their leave, they should be reinstated to their original job, or to a job position that is equivalent to their original job in terms of remuneration, employee benefits, and any other terms and conditions of their original job, such as seniority.

The employee should also not lose any of their other benefits, such as group healthcare coverage, provided they continue making their monthly contributions to the group healthcare coverage.

It should continue as though the employee never left. Employees who take leave for military family reasons are entitled to some additional benefits.

It is good to note that employees are not entitled to receive a salary during an FMLA leave, since the leave is unpaid.

However, if an employee has available paid sick off and they choose to use it, they will continue receiving their salary until their paid sick off is depleted.

Some companies might also have a policy that requires the employee to use up their paid time off before progressing to unpaid leave.

ADA Leave

Employees can also take unpaid medical leave under the Americans With Disabilities (ADA) Act.

Under this act, employees who have a physical or mental impairment that substantially limits one or more major life activities are entitled to several rights, including the right to an accommodation (a change in work facilities, policies, or nature of work) that makes it easier for them to do their work.

Being granted a leave of absence is one such accommodation. Unlike the FMLA, the ADA leave does not have a defined period of time that an employee is permitted to be away from work.

The amount of leave granted under the ADA Act will vary depending on the job as well as the nature of the disability.

Employers are required to grant ADA leave as a form of reasonable accommodation, unless granting the leave would cause undue hardship to the employer.

There is no standard metric for determining undue hardship. Instead, it is evaluated based on several factors, including how much the accommodation (ADA leave) disrupts the employer’s job operations and the financial resources of the employer.

Employees who have exhausted their FMLA leave may also extend their leave under the ADA act, since their medical condition might be taken as a disability that limits their ability to perform their duties. However, it is possible for an employee to be granted FMLA leave and denied ADA leave.

If an employee exhausts their FMLA leave and decides to extend the leave under the ADA act, it is up to the employer to determine what extension is reasonable, provided the leave does not cause undue hardship on the employer.

When an employer is unable to hold a position any longer for an employee who is on ADA leave, the Equal Employment Opportunity Commission (EEOC) suggests that the employer should consider reassigning the employee to another vacant position, which the employee would assume once their leave is over.

If no vacant position is available, it is the employer’s discretion to decide whether to let go of the employee or to place them in unprotected leave and give them whatever position is vacant once they are ready to come back to work.

Military Family Leave

While military family leave falls under the FMLA, I mentioned that those who take leave for military family issues are entitled to some additional rights.

Under the military family leave, service members and their families are guaranteed to types of leave:

  • Military caregiver leave: Employees whose family member (parent, child, spouse, or next of kin) is a service member and is ill or has been injured are entitled to up to 26 weeks of unpaid leave to take care of their military family member.
  • Qualifying exigency leave: Having a family member who is a service member deployed for duty in a foreign country brings with it a number of issues. Employees whose family member (parent, child, spouse, or next of kin) is in the military and has been deployed to a foreign country, or given a notice of deployment, are allowed to take a leave of absence to deal with these issues.

Jury Duty Leave

Under the Fair Labor Standards Act (FLSA), employers are not required to pay their employees for time they take off work in order to fulfill civic duty.

The act, however, allows employees to fulfill their service on a federal jury without the risk of their employment being terminated.

However, some states require the employer to pay a stipend to employees who are away from work as jurors.

USERRA: Military Service Leave

Military service members who are part of a reserve component are allowed to hold civilian jobs until they are required to join active duty.

Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), such service members are entitled to an unpaid, protected leave of absence whenever they are called upon to join active duty.

Under the USERRA, such service members are permitted to be away from work for active military duty for up to five years without losing their status as an employee.

State-Specific Leaves of Absence

Some leaves of absence are only applicable in some states and not in others, governed by their specific state laws.

Some examples of state-specific leaves of absence include:

  • Victim Leave: This is a leave of absence that is meant to protect an employee’s job when the employee is required to attend judicial proceedings related to a crime committed against them. Many states offer victim leave.
  • Voting Leave: Several states also have laws that require employers to grant voting leave to their employees on Election Day. This leave is usually unpaid, and the duration of the leave will vary from state to state.
  • Other State Leaves: Different states have several other state leaves that apply to the specific states, such as Volunteer Civil Service Leave, Organ and Bone Marrow Donor Leave, School Appearance and Activities Leave, and so on.

VOLUNTARY LEAVE

Voluntary leave of absence is time away from work that is not protected by law. In other words, it is up to the employer to decide whether to grant the leave or not, and the employer is under no obligation to hold an employee’s position during a voluntary leave, though they may choose to do so.

While voluntary leaves of absence are not required by law, most employers offer them as a courtesy to employees either as part of company policy, or as part of a collective bargaining agreement negotiated by a labor union.

Employers usually offer voluntary leave for personal and medical reasons to employees who do not otherwise qualify for mandatory leaves or those who have exhausted all their time off.

In most cases, employees are required to give at least 30 days’ notice when requesting for a voluntary leave for personal reasons.

However, in cases where an employee becomes aware that they need time off in less than 30 days, they should provide a notice as soon as reasonably practicable.

An employer holds the discretion to deny personal leave requests that are not submitted according to company policy.

Below are some of the most common types of voluntary leave:

Parental Leave

While parental leave is usually covered under the FMLA, some companies grant their employees paid leave of absence to spend time caring for their newborn children.

However, this is still not very common in the United States.

According to data by the Bureau of Labor Statistics, only 15% of American workers were granted paid family leave in 2017.

Vacation Leave

Vacation leave is paid time away from work that is granted to an employee for the purpose of relaxation, rest, or to attend to personal affairs.

Unlike most other leaves, vacation leave can be taken without condition, which means it is the discretion of the employee to decide when they want to take this leave and for what reason.

This does not mean that an employee can wake up one day and decide that they want to take vacation leave. The employee is still required to request the vacation leave in accordance with company policy and with sufficient notice.

However, there is no legal requirement that the employee is required to meet in order to be allowed to take vacation leave. It is the discretion of the employer to determine the length of vacation leave granted to each employee.

Paid Sick Leave

Paid sick leave refers to time away from work that an employer grants to employees to allow them to take care of their health and safety needs, without losing their pay for the days they spend away from home.

Paid sick leave is usually provided voluntarily to employees as an employment benefit.

According to a survey conducted by the Bureau of Labor Statistics in March 2018, 74% percent of all workers in the US and 85% of full-time workers in the US receive paid sick leave as part of their benefits package.

The number of sick days accrued by employees will vary from employer to employer, based on company policies.

Some employers base the amount of sick days on the employee’s position within the company and the number of years they have worked for the company, while others give an equal number of sick days to all employees.

Some employers also allow employees to roll over their unused sick days from one year to the next, while others apply a “use it or lose it” policy.

Sometimes, paid sick leave combined with vacation leave is broadly referred to as paid time off (PTO).

Bereavement/Funeral Leave

This is time off from work that is granted to an employee who has lost a family member, a relative, or a close friend.

Bereavement leave is granted to allow the employee to deal with issues such as making arrangements for the funeral, attending the funeral, paying their last respects to the deceased, handling matters related to the deceased’s estate and will, and any other issues that the employee might be required to address following the death of a loved one.

Since bereavement leave is voluntary, it is up to the employer to decide whether the employee will be paid during the leave or not, as well as the amount of time to grant the bereaved employee.

However, most companies usually grant employees a bereavement leave of three days when the deceased is an immediate family member, and one day for relatives and friends.

Holidays and Religious Observances Leave

Since companies will usually have employees from various racial, ethnic and religious backgrounds, companies should take care to give employees the freedom to observe their religious holidays, since denial of such freedoms might come across as religious discrimination.

By denying employees time off to celebrate religious holidays, you could be putting your company at risk for a discrimination lawsuit.

While there is no federal law that mandates employers to provide employees with time off for religious holidays, all companies with 15 or more employees are required to comply with the Title VII of the Civil Rights Act of 1964.

Among other things, this act states that employers may not apply differential treatment to employees because of their religious affiliations, and requires employers to make reasonable accommodations to employees for religious observances, provided the accommodation does not cause undue hardship on the employer.

Giving employees time off to observe religious holidays is one such accommodation.

However, the employer is under no obligation to pay the employee for time taken off work to observe religious holidays. It is the employer’s discretion to determine whether religious observances leave is paid or unpaid.

DEALING WITH ABUSE OF LEAVE POLICIES

Sometimes, employees will take advantage of your leave policy to take time off from work for dubious reasons.

For instance, if employees routinely call in sick on the day before or after a holiday, this could be a sign that they are probably not sick, and are only taking advantage of your leave policy to extend their holiday.

Below are some tips that will help you reduce abuse of your leave policy.

Have a Written Policy

The first step to preventing employees from taking leaves for dubious reasons is to have a written policy explaining everything about leave benefits, including requirements for leave benefit, criteria for eligibility, circumstances under which employees may be granted leave, and the process of requesting for leave.

Ask for Advance Notice

Unless in cases of unforeseeable circumstances, have the employee provide an advance notice about the need to take leave.

Even when the circumstances are unforeseeable, the employee should give a notice as soon as practically possible.

Ask for Documentation

Many leave laws allow employers to ask for reasonable documentation as proof of the employee’s need for leave.

For example, where an employee has taken an extended leave for medical reasons, an employer might ask for certification from a medical practitioner.

However, it is good to review your state laws to identify documentation that may have attached restrictions.

Prohibit Moonlighting

Some employees may take extended medical leave and then spend that time working for themselves or another employer.

To prevent this, you might include a clause in your leave policy prohibiting employees from doing other work when they are on medical or family leave, since the condition for the leave is that they are unable to work since they are sick or caring for a sick family member.

WRAPPING UP

While employee absence can have huge impacts on a business, and despite an employer’s best efforts at minimizing the time employees spend away from work, life happens, and it is inevitable that employees will find themselves in circumstances that require them to take some time off work.

Knowing the situations when you are required to grant your employees a leave of absence not only helps to keep your employees loyal, happy and productive, it can also keep you from finding yourself and your company facing costly legal suits for not complying with regulations pertaining to employee leave of absence.

Everything You Need to Know When an Employee Takes a Leave of Absence

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