What Employers Need to Know About Leaves of Absence

Have you ever found yourself asking the following question: “My employee has been off work for an injury – do I have to hold his job?”

As an employer or manager, you manage both people and operations... but do you know how to manage leaves of absence? 

When an employee becomes ill or injured and unable to work, confusion often arises. If an employee is injured, you may think you have to give an employee time off, no questions asked.

That, or you may believe your employee is untouchable if they are receiving disability payments or Workers’ Comp wage replacement benefits.

It’s important to manage the employee’s time off similar to how you manage them at work.

Looking at Leaves of Absence

Let’s look at an example scenario:

You have an employee, John, and he was injured while kayaking… in August. It’s now April. You haven’t heard from John, and figure he must have decided to resign. You send him a letter just to confirm, and pay him final wages.

A month later, you’re shocked to receive a charge of disability discrimination from the Equal Employment Opportunity Commission and a complaint from the Department of Labor stating you failed to provide Family Medical Leave (as dictated by the FMLA).

What went wrong here with John?

• He was eligible for FMLA, and you didn’t talk with him about it or designate the time off.
• His claim is based on failure to provide leave, and he’ll probably win, even though he was given time off... it wasn’t designated.
• The disability discrimination charge? Since John’s leave went beyond the 12 weeks provided by FMLA, additional time off would have been an accommodation under the Americans with Disabilities Act (ADA). You should have talked with him about a reasonable accommodation and documented that conversation. He may prevail on that charge, as well.
• Cost to the employer? Back wages, reinstatement, and attorney’s fees, all of which were avoidable simply by managing the employee’s leave.

It’s important to realize how an employee is paid when they are off work is different than how their time away from work is handled. One is pay and the other is their time off.

If you have 15 or more employees, you’re covered by the ADA and may be covered under state disability laws, which often affects employers with fewer than 15 employees.

Disability laws may require leave as a reasonable accommodation. (Some states have similar requirements and may have a lower employee threshold. Check your individual state laws.)

Understanding FMLA

If you are an employer of 50 or more employees, you are covered under the FMLA which provides up to 12 weeks of unpaid leave every 12 months to eligible employees.

Many states also have mandatory leave laws affecting smaller employers.

Managing Leave of Absence Policies

Many employers have leave of absence policies--here are a few pointers:

• Talk to the employee. Though you may not be able to ask for a diagnosis, you can obtain information about their anticipated absence.

• Ask for a doctor’s note. You don’t want to obtain medical information that is not necessary, however you can request information that you need to determine how much time off they need and when they are able to return (and if they have any restrictions upon return

• Once you know they have an injury or serious health condition, talk with them about available leaves. If they are eligible for FMLA, send paperwork to designate the leave or have your HR department do so.

• When considering leave under FMLA, keep in mind that it should run concurrently with workers’ compensation leave.
  
  
• If they are not eligible for FMLA (or you are not a covered employer), you may still need to provide them a leave as a reasonable accommodation under the ADA. You’ll need to engage in an interactive process to talk with them and explore their need for time off.

• Document your conversation and outcome.

Talk With Your Employees

• Follow up! Once you initially designate the leave, follow up with the employee periodically. If they are scheduled to be back on a specific date, don’t let that date pass without talking with them. Do not assume they are quitting - as the employer, you are responsible for initiating this communication to determine their eligibility for leave.

• If they indicate they have to be out longer, ask for additional information from the doctor. Letting the employee remain on leave with no contact is a recipe for trouble. Contacting them prior to their anticipated return will often encourage the employee to come back to work. If you don’t talk with them, they may think you forgot about them or that it’s okay for them to remain on leave.

If you don’t know what to do when an employee is injured or has a serious health condition, contact a human resource professional or employment law attorney for assistance.

Properly managing a leave will save time and money, and will help get an employee back to work… which is a win for everyone.