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Your Employee Needs a Leave of Absence - Now What?

Matt Avery

There will come a time when one of your employees will likely need to take time off work for their own medical condition, a family member’s medical condition, military service or something of that matter. Because of certain federal and state leave laws, employers are required to provide employees with leave in certain situations. That being said, you as an employer should take note of what your employee is asking for and see if that is protected under the given laws while evaluating a leave request. Such federal employee leave laws and policies include:

  • The Family and Medical Leave Act (FMLA)

  • The Uniformed Services Employment and Reemployment Rights Act (USERRA)

  • The Americans with Disabilities Act (ADA)

  • Any applicable state and local laws regarding employee leave, including laws regarding mandatory paid sick leave

Does FMLA apply?

Simply put, if you have 50 or more employees within a 75-mile radius, you are likely a covered employer. If so, an employee will need to have 12 months service with the company, not necessarily consecutively, and have performed 1,250 hours of work within the last 12 months preceding the leave. The FMLA protections extend to:

  • Twelve workweeks of leave in a 12-month period for:

    • the birth of a child and to care for the newborn child within one year of birth;

    • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;

    • to care for the employee’s spouse, child, or parent who has a serious health condition;

    • a serious health condition that makes the employee unable to perform the essential functions of his or her job;

    • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or

  • Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

If the FMLA applies, the Department of Labor has published a really great resource for employers to comply with the law’s requirements: The Employer's Guide to the Family and Medical Leave Act. You may also operate in a city or state that has their own version of family leave, make sure to confirm your requirements under these acts.

Once confirming that a leave request is not protected under a leave law (including paid sick leave requirements), then you should move forward in evaluating a personal leave of absence. If it’s for the employee’s own medical condition, you’ll need to keep in the Americans with Disabilities Act (ADA) in mind.

What is the ADA?

The ADA is not necessarily a leave law; however, it requires covered employers to accommodate employees with disabilities and a leave of absence could be a reasonable accommodation. While the FMLA allows up to twelve weeks off, the ADA does not specify a specific amount of time, but rather leans on “reasonable”. Unlike many employment laws where consistency rules, the ADA specifically guides an employer to perform an individualized assessment rather than enforcing an inflexible leave policy. Furthermore, if the leave is granted under the ADA, then that employee should return to work to the same position that they previously had unless the company can prove that continuing that position would result in an “undue hardship”, which in my experience is a really difficult position to support. An employer needs to exhaust all good faith efforts before getting close to this attestation. The Job Accommodation Network is a great resource to consult for assistance, in addition to a vast online library JAN provides free, confidential technical assistance about job accommodations and the ADA.

How can you prepare?

As an employer, it is important to make sure that the managers are properly equipped and trained to handle leave requests. While your managers don’t need to be experts on the various leave laws, they should be trained what to listen to in a request and who within the organization to bring the requests.

Other considerations

  • Is this a work-related injury?

  • Does the employee need time away to perform military obligations?

  • If not required under the above, can you give some time for the employee to take care of their business by giving a personal leave of absence?

Next Steps

Many of the questions I receive about leave of absence is whether or not the employee has to be paid while they are away. Generally speaking, most leaves protect an employee’s job and benefits, but you are not required to provide a paid leave of absence. However, check paid time off policies as well as disability insurance, and any paid sick requirements. Another common question I receive is how long to continue an employee’s insurance coverage. If they are covered under FMLA – like the time away, the insurance requirements are clearly defined. If not, that’s not black and white and may require some specific analysis with our benefits specialists. Furthermore, it is important to keep a record of your employees benefits premium payments while they are away since they will still need to contribute their normal portion of the premium.

It is important to make sure that you have a policy in place that handles leave of absence cases, which is something we can help you with. Benefit Concepts can help your business with employee benefits, HR compliance, and more.

This article is a summary of your first steps in analyzing a request for a leave of absence. Of course, there are many nuances that can’t be addressed in a short article. The links within the article as well as listed below will provide a good overview of the laws and your responsibilities. Submit a question through HR Link and I’d love to discuss your situation with you. As an HR professional, I cannot give legal advice, so you may also want to consult your employment law attorney.

I look forward to helping you navigate the leave of absence maze!

Emily Dusablon

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