The laws surrounding protecting the rights of workers to take a leave absence are many, and vary widely from place to place. Some of the laws a from the federal government, some are in place at the state government level, and yet others may apply to particular local areas. It doesn’t take much digging to find a surprisingly wide array of different kinds of leave, including pregnancy, birth, adoption, family illness, organ donation, disability, military service, crime-victim status, bereavement, family responsibilities, personal emergencies, and so on. All potential situations requiring time off can make leave of absence management difficult to figure out. And yet, figure it out you must, not only to stay compliance with applicable laws and regulations, but also to minimize the impact a leave of absence can have on your company.
Leave of Absence Management: The Compliance Angle
In order to be compliant and mitigate the risk of litigation for failing to comply with leave laws, you obviously need to become familiar with all the regulations and laws that apply to your company’s location. Keep in mind you need to look at three different levels: Local, state, and federal laws, regulations, and ordinances. Once you understand your legal obligations around leaves of absence, also keep the following considerations in mind at your specific company:
- Recordkeeping: A key aspect of maintaining compliance and leave of absence management is keeping detailed records of employee time off. This is absolutely essential for protecting your company should there be any allegations or litigation related compliance around time off. It’s surprising how many companies are still managing this through a combination of paper forms and spreadsheets. This is especially mystifying when you consider that this is the 21st century, and there are all kinds of highly affordable yet robust time tracking and leave management software options that are cloud-based software-as-a-service (SaaS) applications accessible through any device with an internet connection and web browser. CaptureLeave is an app your company should examine if it’s time to make the switch to time off tracking technology.
- Consistent policies: Another important aspect to leave of absence management is making sure all employees are treated not only fairly and in compliance with applicable laws and regulations, but also with consistency. Employees of the same type and level must be treated similarly when it comes to leaves of absence. If similar employees are treated differently in this regard, whether intentional or not, the result can be an expensive lawsuit. Even if any allegations are eventually found to be untrue, the litigation cost itself can still be a major hit to the company’s bottom line. For example, you might really want to let a star performer have additional leave beyond what’s normal because you don’t want to lose them, but if you’re not willing to offer the same additional leave to your worst employee in a similar situation, then you’re not being consistent, which can make you vulnerable to claims of discrimination.
- Conflicting leave laws: Because there can be a veritable web of laws around leave, there can be overlap and outright conflict between the laws. Because of this, any given situation could result in an employee being eligible for more than one kind of leave. When multiple laws intersect, it is rarely a smooth interaction. There are a whole range of new state and local laws around sick leave, and you need to make sure you company leave policies are aligned to those. You also need to check state worker’s compensation laws that might apply. And then at the federal level there’s the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) that might also apply. It’s enough to make your head spin, but you do need to sort through it all to determine how you’ll comply with all of them. And it’s easy to make mistakes by having company policies that don’t comply. As just one example, a lot of companies have a policy that says an employee can be terminated if they are unable to return to work after they’ve used up all their FMLA protected leave time. But if the reason for the leave meets the definition of a disability under the ADA, then the company policy is not in compliance with the ADA if additional leave is a reasonable accommodation. Another common mistake is when a company doesn’t offer any time off until a new employee has been on board for some amount of time, which in some cases is as long as a full year, but local and state leave laws may stipulate a shorter time period when time off needs to kick in, such as 90 days.
- Intermittent leave: There can be some cases where what is recommended for the employee by a medical professional is intermittent leave. This can be a logistical nightmare for an employer. If this happens, be sure you immediately work with the employee and their medical team to nail down the details of what the frequency of duration of leave times will be so you have enough time to work up a plan for how to cover that worker’s duties on an intermittent, recurring basis. You may have to press the medical professionals involved to be as specific as possible about the intermittent leave, which is fine. You need to know so you can plan around it.
- Returning to work: Another aspect to pay careful attention to is the return to work at the end of the leave. The whole point of legally protected leave is that you have to put that person back to work at your company in the same or an “equivalent” position (meaning virtually identical in terms of pay, benefits, and so on). Failing to do this is a sure path to an unwanted lawsuit.
The Logistics Angle of Managing Leaves of Absence
Even when you handle a leave of absence in full compliance with all applicable laws and regulations, this doesn’t mean it won’t still be a major headache for you to deal with in terms of its impact on your company. Consider the following:
- Scheduling: An extended leave of absence can deliver a serious blow to your company through lost productivity. There are some things you can do to reduce this impact. First, immediately find out who among the person’s colleagues can form a team to take on additional duties for a limited time while a better plan is formulated. In an ideal world, you would engage in a enough cross-position training that ensures there are one or several people who know how to do that person’s job. Depending on the position, you may be able to line up a temporary replacement through a staffing agency as a more permanent solution during the duration of the leave.
- Leave abuse: There will always be people here and there who try to game the system. Make sure you company policies are very clear about the consequences of leave abuse, and make a point of enforcing them consistently in every case. Send a clear message that this will not be tolerated.
- Verification: Related to leave abuse is going ahead and verifying the reason a leave of absence is being taken. If the laws in your area provide the right for you to verify the reason for leave requests, then by all means do it. Do so in a sensitive, respectful manner, of course, but if it’s your legal right as employer to request certification, you should do so. This will help reduce instances of leave abuse. Just make sure you know when and how you’re allowed to verify a leave request according to the laws that apply to your company.
When it comes to making sure your company’s leave of absence management policies and practices are fully compliant with all legal requirements (and considering the potential costs of being found non-compliant), it may be very worth your while to consult attorneys who know this area of law as it pertains to employers. Seek out legal consultation from professionals with demonstrated expertise in topics such as Employment Law Compliance Advice and Training, Employment Litigation, and Workplace Accommodation and Leave Issues. After all, this is one area where it’s better to be safe than sorry.
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