Practice Pointer: The Complexities of Employee Leave Management

August 30, 2024

Creating a process to address and manage employee leave of absence while meeting legal requirements can be challenging and complex to navigate. To make things more complicated, leave programs are constantly expanding and evolving with new legislation at the state and/or local level. Therefore, employers should take the time to carefully design, plan, and allocate the necessary budget to effectively manage leaves of absence.  

When designing employee leave policies, employers may think a single extensive general policy will cover all situations. However, leave management is multi-layered and requires well-defined, specific guidelines. These policies ensure employees understand their rights and obligations as well as help reduce the risk of disputes or grievances. As a best practice, regularly review leave policies to ensure they are up-to-date and compliant with federal requirements as well as state and local regulations.

Complying with Federal Requirements

The Family and Medical Leave Act (FMLA) is a federal law that grants eligible employees of covered employers (with 50 or more employees) up to 12 weeks of unpaid job-protected leave annually for specific family and medical reasons.

While employers with less than 50 employees are not subject to the FMLA, those who employ 15 or more employees must comply with the American with Disabilities Act (ADA). The ADA prohibits discrimination against individuals with disabilities in several areas, including employment. An unpaid leave of absence may be considered a reasonable accommodation under the ADA so long as it does not create undue hardship for the employer. Employers should be aware that meeting the criteria for undue hardship under the ADA can be a high threshold to meet.

While the FMLA and ADA apply to employers of a certain size, the Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to all employers, regardless of size. USERRA guarantees an employee returning from military service or training the right to be reemployed at their job (or a comparable one) with the same benefits. Employees may generally take a cumulative total of five years of leave for uniformed service, including active and inactive duty, training, fitness-for-duty examinations, and funeral honors duty. Since USERRA does not specify a maximum duration for consecutive leave, it’s wise to define it in your company’s policy to avoid any potential abuse.

Complying with Specific State Leave Laws

Navigating employee leave laws can be challenging as they vary by state; however, understanding these state-specific requirements is imperative for multi-state employers. A growing number of states are enacting paid leave programs that include leave for family, medical, and bereavement among other qualified reasons. Additionally, cities, counties, and municipalities may have different leave requirements than what is required by the state. It is essential for employers to evaluate all these details as they develop their leave policies.  

Designing and Administering Leave Policies

Armed with the above information, employers can create clear written policies to meet both legislative requirements and employees’ needs. The answers to the following questions may help employers balance regulatory requirements with business’ needs while developing leave policies:

• Does the company have a parental leave policy defined as “maternity/paternity” leave? Has it been updated to reflect the Equal Employment Opportunity Commission (EEOC’s) guidance, and written to focus on primary and secondary caregivers?
• Is the company subject to any mandatory paid sick leave laws?
• Is your military leave policy equitable to your other leave policies?
• Does the company’s policy detail what happens when different leave policies overlap?

When a particular scenario arises employers must have all the necessary details required to apply the correct type of leave and ensure compliance with the various applicable leave laws. Consider the following:

• Identify the situation — employee status, length of employment, type of leave needed
• What do applicable Federal laws dictate in this situation?
• What do applicable State laws or regulations require for this type of leave? 
• Are there specific local, county, or city regulations that impact the leave? 
• What does the company’s policy currently state? 

There are many factors affecting how an employee leave management program should be designed, and the process is often not clear-cut. Employers should thoughtfully balance regulatory requirements and modern leave approaches while developing leave policies. Employers don’t have to try to navigate this process alone, Hilb Group | HR Consulting can help.

If you have any questions or need assistance with creating an employee leave management policy for your business or have questions regarding this Practice Pointer, please email us.