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Leave of Absence Policies: Common Elements

When developing leave of absence policies, refer to all applicable laws and consider the following components:

  • Eligibility. Determine who is eligible for leave (such as, full-time and/or part-time employees) and how long employees must work for the company before they are eligible.
  • Reasons for leave. Clearly state under what circumstances employees can take leave. If the policy applies to family members, define who qualifies as a covered family member.
  • Length of leave. Indicate how much time employees can use for each covered purpose and whether the leave has to be taken all at once or if it can be taken on an intermittent or reduced schedule basis.
  • Pay. Clearly explain whether the leave is paid or unpaid and/or whether employees can use their accrued paid time off during the leave.
  • Advance notice. Most leave laws require employees to provide advance notice when the need for leave is foreseeable. When the leave is not foreseeable, generally employees must provide notice as soon as possible.
  • Leave requests. Require employees to submit leave requests, including the reason for leave and expected duration, in writing. Employers should provide approvals and denials of leave in writing as well. Due to the nature of the information, maintain this documentation and other leave documentation (which may be required to be retained under the law), in a confidential file separate from the employee’s personnel file.
  • Medical certification. Employers may want to request medical certification or other documentation validating the need for, and duration of, leave. Several leave laws have specific rules for making these types of requests, so be sure to review your applicable law to ensure compliance.
  • Health insurance continuation. Indicate whether the employee may continue health, dental, and other benefits during leave (many leave laws require continuation of such benefits). If employees are able to continue benefits during the leave, provide instructions for how employees are expected to make payments for their share of the premiums. Also, consider whether employees on leave will continue to accrue vacation or other paid time off.
  • Reinstatement. Most leave laws require employees to be reinstated to the same or comparable position following leave. Provide employees with instructions for notifying you when they’re expected to return to work.
  • Anti-retaliation. Many laws prohibit employers from retaliating against employees for taking a job-protected leave of absence or exercising their rights under the law(s). Instruct managers that any form of retaliation will not be tolerated. Also, train managers on your leave policies and procedures to ensure they follow applicable laws consistently and appropriately respond to leave requests. For example, some laws require employers to provide all employees, or employees requesting leave, with written notices concerning their leave rights.

Family & Medical Leave

Federal Family Medical Leave Act (FMLA):

FMLA requires employers with 50 or more employees to provide unpaid, job-protected leave for an employee’s own serious health condition, a family member’s serious health condition, the birth or adoption of a child, or for certain family military situations.

State Mandated Family Medical Leave:

Several states have their own family and medical leave laws, some of which cover smaller employers and/or permit leave under additional circumstances.Employers who are not required to provide family and medical leave may decide to voluntarily provide employees with this type of leave. If you choose to voluntarily provide family and medical leave, have a written policy that addresses eligibility, leave entitlement, length of leave, notice requirements, benefits continuation, reinstatement, and related issues. Refer to the Family and Medical Leave policy in the Employee Handbook Wizard to help structure your policy.

Paid Family Leave (PFL):

A few states have paid family leave programs that allow employees to take family leave and receive partial wage replacement. These programs are generally funded either solely through employee contribitions (via payroll deductions), or through both employee and employer contributions.

Interplay with Other Leave Laws:

Generally, when an employee qualifies for more than one type of leave for a covered purpose, the leaves run concurrently. This prevents employees from stacking leaves (returning from one leave only to go out on another for the same issue). To run concurrently, the employee must be eligible for both types of leave and the reason for the leave must be covered by both laws. For example, if the employee suffers a work-related injury and is on workers’ compensation leave, the employer may generally count this time against the employee’s federal FMLA entitlement as long the employee is eligible for FMLA leave and the injury qualifies as a “serious health condition.”Generally, where federal, state, and local laws conflict, the law that is more generous to the employee applies. Check the Leave of Absence section of the HR411® State & Federal Compliance Database for more information on your applicable laws.

 

Sick Leave Laws

A number of states and several local jurisdictions have passed sick leave laws. Generally, these laws permit employees to take leave to care for themselves or a family member. Additionally, these laws typically address whether the leave is paid or unpaid, the circumstances in which employees can take leave, how much time they can take per year, how the leave accrues, whether the time carries over from year to year, and job reinstatement.

Paid Time Off (PTO) Bundled vs. Separate Sick Leave:

Generally, employers subject to paid sick leave laws may choose to offer paid sick leave through a single PTO policy. A PTO policy bundles various types of leave, such as vacation, sick, and personal leave, into a single bank that employees can use for any purpose. This option can be especially attractive for employers operating in multiple jurisdictions with paid sick leave laws. Generally, this approach is permitted as long as the PTO policy allows employees to use the same, or more, leave for the same purposes and under the same conditions as the most generous sick leave law.

Accrual & Frontloading:

Employers generally have the option of choosing whether to frontload paid sick leave (grant all leave at the beginning of the year) or have employees accrue their time each pay period. Many employers prefer the accrual method since employees may only use what they accrue (and carryover) rather than having all of their leave available to them at once. However, frontloading the time can be easier to administer. Also, depending on the law, if an employer frontloads paid sick leave they may not be subject to carryover requirements. Check applicable paid sick leave laws to ensure compliance.

Carryover & Payout:

Many paid sick leave laws require that all, or a portion of, unused sick time be carried over into the following year. In some cases, a reasonable cap on accruals may be permitted. In such cases, employees have to “use” some of their time in order to earn any additional time.

Additionally, some states and jurisdictions explicitly prohibit policies that force employees to forfeit accrued, unused vacation time (also known as use-it-or-lose-it policies). In these cases, employers must generally allow employees to carry over accrued but unused vacation time/PTO from year to year, or pay employees for the unused time at the end of the year.

If sick leave is bundled into one comprehensive PTO policy, consider the impact of paying out the time upon termination. Be aware that in some states employers are required to pay out all accrued, unused PTO at the time of separation. This could result in additional costs because most sick leave laws do not require pay for unused sick time when an employee leaves the company.

Medical Certification:

Sick leave laws generally permit employers to ask for documentation, such as a doctor’s note, but most only permit employers to make this request after an employee has been absent for a certain number of days. Even in the absence of such a restriction, consider what, if any, documentation would be reasonable to require from employees and apply your policy consistently.The documentation must generally be limited to confirmation that the employee was ill, rather than detailed information on a medical condition. This information should only be shared with those that need to know and should be stored in a secure file, separate from the employee’s personnel file.Check the Leave of

 

Jury Duty Leave

Jury duty is mandatory and employers are prohibited from disciplining or otherwise retaliating against employees who serve on a jury or who are summoned for jury duty. When an employee is called upon to serve, consider the following guidelines:

  • Advance notice. Ask employees to provide as much advance notice as possible when they are called upon to serve. This can help you make scheduling adjustments to accommodate the employee’s absence.
  • Verification. Some employers choose to require employees to provide verification of jury service. Some states have created online tools to help employers verify jury service. If you decide to implement a verification process, apply it consistently to all employees who are called upon to serve.
  • Early release. Many employees who receive a jury summons aren’t selected to serve and others may be released early. Provide employees with specific instructions for returning to work under these circumstances. For example, some employers require employees to report to work if they are released from service with at least four hours remaining in their shift.
  • Scheduling considerations. While it is generally permissible to request employees to return to work following an early release, some states prohibit employers from requiring an employee who has served a full day of jury duty to then work a full shift (for example, a night shift). Make sure your policy complies with applicable state law.
  • Pay. Some states require employers to pay non-exempt employees for time spent serving as a juror. Of the states that impose a pay requirement, some permit the employer to pay the difference between payments received for serving as a juror and the employee’s regular wages. Note: Exempt employees must receive their full salary (minus jury or witness payments), unless the employee is out for a full workweek.