leave of absence policies

June 24, 2020June 22, 2020

Why an absence program is vital for any organization

Absence management programs and policies are increasingly significant for organizations, especially as more leave laws pass on a local, state and federal level. Managers dealing with absences from their staff must know what their company’s absence program means for their own role and responsibilities.

Creating an absence program or policy can be complicated, and there are several types of leave that must work with each other. For example, how does a company’s paid time off policy align with paid family leave laws, short-term disability plans or the Family and Medical Leave Act? What if employees are using PTO when they should be using short-term disability?

Here is some guidance for employers who want to put something more formal in place and stay up-to-date on changing leave laws.

Creating a strong foundation

The foundation of any absence management program is that it takes into account all the local, state and federal leave laws that an organization must follow. Before a company decides what it wants to do, it must understand what it has to do, said Maura McLaughlin, partner with law firm Morgan, Brown & Joy, LLP. Different laws may have different employee count thresholds, for example.

There are many types of leave, and as new leave laws come into effect, organizations should look at their current policies in case an update is necessary, McLaughlin said.

Staying up to date with new laws can be done a few different ways, said Simon Camaj, absence and disability practice leader at Mercer. A company can outsource management to a carrier/vendor whose job it is to stay informed on the leave law landscape. A company could potentially rely on three parties together — a vendor partner, a consultant partner and in-house counsel — to make the best decisions. Meanwhile, if a company keeps decisions internal and relies on its in-house counsel, that’s more burden on the attorneys.

It’s up to a company to make the best decision for themselves, but there are costs and benefits either way.

From must-haves to nice-to-haves

The next step is deciding how your company wants to address those areas where the law offers organizations some discretion or flexibility, McLaughlin said. How will the company decide on accruals for paid sick leave — lump sum or hours worked? Does the company want to make a certain type of leave paid rather than unpaid? What else does the company want to offer?

These decisions depend on the culture of the organization and what resources it has, McLaughlin said. What is common to see in the absence program or policy of many companies, though, is longer bereavement leave than the law requires and paid parental leave in states where it is not required.

Documentation and communication

What an organization also must consider is how it will document the necessary information for its records and communicate to employees what forms or notices they must fill out for different types of leave.

The onboarding process is one area where employees may be informed about their company’s absence management policies, McLaughlin said. Here they can learn who they go to when they must take time off or some type of leave — their manager, HR or someone else? They can also learn the correct modes of communication to reach out to that person, whether that’s a phone call, email or something else.

Manager training

Finally, McLaughlin said, organizations can train managers and HR professionals to make sure they know what signs to take notice of that may signal a potential upcoming absence. Is an employee exhibiting some behavior that may predict that this person may be eligible for FMLA leave? For example, an employee may say something along the lines of, “I was in the hospital overnight” or “I need to be on bedrest for just a few days.” While these might not lead to any prolonged absence, if they do managers can be prepared, having considered the employee’s absence or potential reasonable accommodations beforehand.

This training can also stress that managers cannot retaliate against employees and teach managers how to handle an absence in a non-discriminatory way. A major absence management challenge is managers being able to manage employees consistently so it doesn’t look like discrimination, McLaughlin said.

How this type of training is conducted depends on what internal resources an organization has, McLaughlin said. It can come from an internal training function or from external training. Either way, there can be a baseline training session along with refreshers as laws or company policies evolve.

The significance of absence management

An absence program is vital to an organization. Managers don’t want to fall into the mistake of not managing this until it’s too late, McLaughlin said.

“You may have [an employee] who has not been held accountable, and now you’re at a point of it just being a real problem from an operations and business perspective. But you have no documentation of the fact that it’s been a problem or that you’ve given them all the leave they’re entitled to. And now you have a problem that could have been [avoided,]” she said.

June 9, 2020June 7, 2022

Absence management is increasingly vital for managers to understand

shift scheduling, technology, custom fields

Absence management — the program and policies in place that control absences due to injury and illnesses — is a vital part of workforce management. Employees miss work for a variety of reasons, and managers must make sure they are on top of employee absences and keeping the business running.

That being said, there are certain aspects of absence management that tend to elude managers. Simon Camaj, absence and disability practice leader at Mercer, said that understanding intermittent disability claims is an area in which many managers lack understanding.

Also read: Leave management should be as simple as submit, approve and hit the beach

This is problematic for both managers and employees. Employees may have a valid claim and a condition that allows them to take time off intermittently to tend to their condition. But a manager is running a business, and they must understand that their employee can legitimately take that time off and still be able to manage their business in that employee’s absence.

Intermittent versus continuous claims

A continuous claim happens in a situation where an employee needs short-term disability leave for a finite amount of time. They may, for example, not be at work for six weeks straight, giving the employer the opportunity to plan around their absence and prepare for their return. This is relatively straightforward, Camaj said.

What often complicates disability leave for employers, though, is when an employee is physically present at work but eligible for intermittent leave. As the UC Santa Cruz human resources team explains, an intermittent leave may allow an employee to take time off in separate periods of time due to a single illness or injury, rather than one continuous period of time. Leave may include periods from an hour at a time, a day at a time or multiple days in a row, the HR guidance added.

Communication between employees and managers is the biggest challenge here, Camaj said. Leave policies may not be clear on the role of the manager and employee regarding intermittent leave.

Also read: Employers grapple with laws about work schedules

The relationship between management and company leadership
Company decision makers should be clear on what the organization’s time off and employee leave strategy is and how it fits into what the organization is trying to accomplish.

“If you’re going to offer something to employees, they will naturally consider using it,” Camaj said. “And you have to balance that with certain business goals and priorities.”

It must be made clear in the policy and communicated to both employees and managers what their role is in this absence management procedure, he said. Who does an employee call when they need to take their intermittent leave? What are they personally responsible for? Meanwhile, managers must know what rights employees have to take intermittent time off and what their strategy is to modify the schedule in case that happens.

Whichever absence management administrator or vendor a company uses has a role here and a responsibility to communicate important information to employees and managers, Camaj said. How does the administrator communicate with the employee who has the legal right to take a certain type of leave? How do they engage with the managers in charge of these employees?

A paradigm shift

There’s been a paradigm shift recently where there’s more awareness from employers of the importance of leave management and of employees being able to balance their work and personal lives and health, Camaj said. Evidence of this change includes the expansion of paid parental leave and caregiver leave laws across cities and states.

”This is employers looking at employees and saying, ‘They’re at different stages of their lives and we have to meet people where they’re at.’” he said. “The paradigm shift is employers are seeing leave of absences as employee health events, and if you do a better job at managing leave as a health event, you have stronger productivity, and it helps everybody. It’s not just a leave program you have to have, It’s a strategy.”

Also read: Time off policies promote convenience while enhancing engagement

This trend will continue, he said, as employee leave grows increasingly more complex with new local or state laws concerning paid time off and paid leave. The issues employers have managing employee absences are not going away. Still, Camaj said he’s seeing more employers step up to the plate.

”We have a greater focus where employers are looking at their leave policies; managers and employees are trying to understand what they have; and vendors are finally at a point where they’re trying to simplify and support leave administration in general with technology,” he said. “As an industry we’re making progress, but this is only going to continue becoming a bigger focus.”

June 4, 2020June 29, 2023

Can you force employees who participate in George Floyd protests to quarantine without pay?

Yesterday I discussed the legalities of placing on an unpaid leave of absence employees who engaging in leisure mass gatherings outside of work.

What about employees who you discover gathered in mass to protest George Floyd’s murder and racial injustice? There are legitimate concerns that the mass protests taking place in cities around the country will cause an acceleration of COVID-19 spread and a spike in cases. Can you place protesting employees on an unpaid leave of absence to quarantine before they return to work?

The TL;DR answer is “yes.”

The longer answer has a couple of key exceptions and other nuances.

1/ Public employees enjoy some First Amendment protections work. In the private sector, Connecticut prohibits employers from disciplining or firing employees for exercising their First Amendment rights. California, New York, and the District of Columbia ban political affiliation and activity discrimination. New Mexico and South Carolina ban discrimination based on political opinions. And Colorado and North Dakota more broadly limit an employer from restricting any lawful off-duty activities by employees. In any of these cases, I’d have concerns about taking an adverse action against an employee for participating in a peaceful political gathering. (For rioters and looters, all bets are off no matter what.)

2/ Title VII might offer additional protections for protesters, but only if an employer treats employees of one race (say, for example, its African-American employees) more harshly than employees of another race. If an employer treats all employees the same by requiring anyone protesting to take a mandatory two-week unpaid leave of absence, then Title VII won’t offer much help.

3/ The National Labor Relations Act’s protections for employees who engage in “protected concerted activity” likely have zero application, for the reasons I discuss here.

This issue, however, is a lot more nuanced than, “The law says I can send employees home without pay while they quarantine, so I will do so for anyone engaging in behavior outside of work that placed them at risk for COVID-19.” There is no easy answer to this question. I believe that you are taking a risk of injecting COVID-19 into your workplace if you allow these employees to return to work on the heels of protesting (no differently than returning a weekend mass-gathering partier). The question is whether you pay them for their time off. You have two options, which depend on where you come down on the safety vs. racism spectrum:

1/ Treat George Floyd protesters no differently than any other person who gathers in a large group outside of work by sending them home for two weeks without pay. The safety issues are identical. Mass protesters could turn into super-spreaders of the virus, including in your workplace. We are still in the midst of a pandemic, and no matter how large of a problem system racism is, and no matter how awful George Floyd’s murder was, we cannot lose sight of the big coronavirus picture, lest we have another spike in cases and lose even more lives.

2/ Pay George Floyd protesters for their mandatory leaves of absence. These employees were not getting their weekend jollies on, but were exercising their political dissent over a vitally important issue. You can take a stand as an employer against the racism over which they were protesting by paying them for their mandatory LOA quarantine. It also prevents your company from being painted as pro-racism by a viral online mob based on a perception (accurate or not) that you are punishing these employees for protesting this important issue.

Me? I’m longing for a day when we don’t need to even have this discussion because both the pandemic and racism are history.

May 25, 2020July 11, 2023

How to reduce compliance risk

Compliance is complicated and time-consuming, and employers don’t have the time to become experts in every rule or regulation that impacts their business. For any organization, addressing how to reduce compliance risk requires the right external and internal resources.

Failure to adhere to compliance requirements exposes an organization to lawsuits, costly fines and other penalties as well as negative publicity and harm to business reputation, noted XpertHR in its report “Top HR Compliance Challenges for 2020.” The organization surveyed 700 HR professionals, 28.3 percent of whom said recruiting and hiring was their top concern. Meanwhile, 16.2 percent said so about benefits and 10.1 percent about pay and scheduling issues.

Of those challenged by pay and scheduling issues, 13.3 percent said they are extremely challenged by the misclassification of exempt and non exempt employees, compared to only 6.6 percent in 2018. And 9.8 percent feel extremely challenged by state and local minimum wage increases, down from 12.9 percent in 2017.

In 2020, 21 states and many localities — including 20 in California alone — will be impacted by minimum wage increase, the report noted.

Also read: Labor compliance software sorts through complex legal issues

XpertHR Legal Editor Beth Zoller said that it’s also important for employers to be proactive about trending issues like harassment training, hairstyle discrimination, pregnancy accommodations and prohibiting pre-employment drug testing.

No matter what the compliance issue, there are many ways to efficiently address how to reduce compliance risk, ultimately benefiting both employees and employer.

Also read: Regulating recruiting amid constant technological innovations

Workforce planning

In the XpertHR survey, 8.3 percent of respondents said workforce planning was their top compliance concern. Zoller defined “workforce planning” as “the continual process an employer uses to align the organization’s business needs and priorities with those of its workforce to make sure it can comply with legislative, regulatory, service and production requirements and organizational objectives.”

Among today’s global workforce, she said, employers must understand both the internal and external factors that impact workplace processes like recruiting, retention, training and performance management.

These internal and external factors include the rise of flexible working arrangements and remote workers, the use of independent contractors to replace traditional workers, and the use of technology to increase communication and productivity, Zoller said. All these are areas in which employers must be careful to be compliant with the various regulations, such as those regulating remote work, classifying employees correctly.

Also read: Tax compliance a key consideration for remote work policies

Benefits compliance

Benefits compliance was the second biggest compliance concern for employers, according to the XpertHR survey. Dorian Smith, national practice leader for Mercer’s Law & Policy Group, specializes in health and welfare benefits.

There are different trusted advisors HR or workforce management professionals can reach out to for different buckets of compliance, he said. For health benefits, representatives from the insurance carrier or third-party administrator can provide guidance. Attorneys specializing in ERISA can help answer retirement-related questions. Complying with a variety of regulations means partnering with a combination of different advisors that cover an employers’ bases.

Employee leave laws

Even before the COVID-19 pandemic introduced new employee leave requirements through legislation like the Families First Coronavirus Response Act, the paid leave landscape in the United States was a “hornet’s nest,” Smith said. COVID-19 rules simply added another layer to an already complicated paid leave environment, where employers often must pay attention to different state and local laws that could affect their business.

Whichever HR or workforce management professional deals with paid leave at an organization should maintain a relationship with the carrier that administers the leave program, and a major carrier should have an understanding of the paid leave environment, Smith said. Still, while they can provide support to navigate the organization through compliance, they generally don’t provide strategic support, he added.

He gave an example of an organization that is looking to shut down a location. They may have the right to do so compliance-wise, but strategically they should think about the make-up of the workforce in that location. Are they predominantly older or part of another protected class? That is a strategic way to look at this situation, since an organization does not want to be exposed to a discrimination lawsuit.

Many areas of compliance are “part compliance, part strategy,” he said. “You can’t do strategy without thinking about compliance.”

Smith also suggested that organizations should engage with their internal or external legal counsel before they make decisions regarding paid leave strategies. Smaller organizations will likely need more external help because they may not have internal resources. But it doesn’t stop there.

“This issue isn’t isolated to smaller firms. Even larger employers with ample internal resources will need outside help,” Smith said.

Mercer, for its part, began a toolkit during the COVID-19 pandemic that is updated every week to reflect what state and local paid leave laws have been amended or created. This is meant to help organizations stay current on changing laws.

On XpertHR’s survey, 5.7 percent of respondents said that “leaves of absence” was their No. 1 compliance concern. Of these people, 28.9 percent said they are extremely challenged by keeping up with rapidly changing leave laws, up from 11.2 percent in 2017 and 19.5 percent in 2018. And 16.1 percent said they feel challenged in determining which leave laws apply to their organization, up from 8.3 percent in 2017.

Depending on size and location, an employer may be required to comply with a variety of different leave laws, Zoller said. These leave laws include paid sick leave, paid family leave, bereavement leave, domestic violence leave, jury duty leave and military leave.

She suggested that employers invest in online compliance tools to help them stay up to date with changing laws and requirements on the federal, state and local level.

Best resources

Considering how to reduce compliance risks may be daunting. But regardless of the type of compliance issues an organization has, there are resources available. These resources include:

Internal or external legal counsel.
Online compliance tools.
Your insurance carrier.
Consulting firms that specialize in your compliance area of interest.

Don’t get bogged down by weighty compliance responsibilities. Creating smart partnerships can help an organization stay compliant.

January 29, 2019June 29, 2023

When Can I Fire an Employee on Medical or Pregnancy Leave?

One of the questions that clients ask me most often is, “________ is out on a medical/pregnancy leave (or just returned); can we fire him/her?”

My response, always: “Why?”

There are several reasons why you might need to fire an employee who is absent from work on, or just returned from, an otherwise FMLA or ADA protected leave.

While picking up the absent employee’s work, you discover he or she was not doing his or her job.
You uncover misconduct committed by the employee (fraud, theft, etc.).
You need to reduce headcount or eliminate the employee’s position.

Thus, my answer is always the same — “Would you have fired or RIFed the employee absent the otherwise protected leave of absence?” If so, then you can go ahead with the termination, understanding that a large amount of legal risk does exist. It does not mean that the employee is bulletproof, but it does mean that you need to tread carefully, make sure everything is well documented, confirm consistent treatment, and understand you will need to pay severance in exchange for a release or face the prospect of a lawsuit.

Case in point: Nieves v. Envoy Air, Inc. (6th Cir. 1/14/19).

Nieves worked as a gate agent for an affiliate of American Airlines for 19 years. His employer permits employees to fly for free, but prohibits employees from sharing their free travel benefits with anyone other than spouses or children. In April 2015, the employer randomly selected Nieves for an audit of its free travel program. In the middle of the audit, Nieves went out on an FMLA leave of absence. Upon his return to work, the audit continued, ultimately uncovering that Nieves had shared his travel benefit with ineligible individuals (his mother’s boyfriend, and non-children). Accordingly, the employer fired Nieves, just as it did with anyone it determined violate the free travel program.

Nieves sued, claiming that his termination, less than six weeks after he returned from FMLA leave, was in retaliation for the FMLA leave. The court disagreed:

Nieves argues that his travel log was given heightened scrutiny and that this raises an inference of a causal connection. However, nothing in the record supports that he was subject to increased scrutiny beyond the ordinary inquiry that follows a travel audit within the company. Envoy maintains that Nieves was flagged for an audit due to the number of entries on his travel log. According to American and its Matrix, an employee’s abuse of travel privileges is a terminable offense, regardless of whether the ineligible individual is currently listed or was in the past.

If you are going to fire someone during, or on the heels of, an FMLA or ADA leave of absence, you need a good reason, consistency, and the support of solid documentation. And even in that case, you face the choice of likely litigation, or a separation agreement with a payment of severance in exchange for a release. In all but the most egregious of terminations, I recommend the latter because the risk of the former is so great.

Also in The Practical Employer: Your 2019 Employment Law Compliance Checklist

NLRB Flip-Flops on Key Independent Contractor Test

December 12, 2018June 29, 2023

I’ll Take Leave of Absence Policies for $5.25 Million, Alex

A: An employer must have one of these to avoid running afoul of discrimination laws when an employee is out on a medical leave of absence.

Q: What is an open-ended leave of absence policy?

Two employers recently learned this lesson the hard way, care of the Equal Employment Opportunity Commission.

Family HealthCare Network will pay $1.75 million to resolve disability and pregnancy discrimination claims stemming from its use of “rigid leave policies and practices to deny reasonable accommodations to its disabled and/or pregnant employees, refusing to accommodate them with additional leave and firing them when they were unable to return to work at the end of their leave.”

The Cato Corporation will pay $3.5 million, also to resolve claims that it “denied reasonable accommodations to certain pregnant employees or those with disabilities, made certain employees take unpaid leaves of absence, and/or terminated them because of their disabilities.”

Says Melissa Barrios, director of EEOC’s Fresno, California, Local Office, “The EEOC continues to see cases in which employers have a rigid leave policy that discriminates against individuals with disabilities or pregnant employees.”

These issues very much remain on the EEOC’s radar. Unless you want to risk being on the receiving end of an expensive enforcement lawsuit, take these lessons to heart and ensure that your leave of absence policies, both in writing and in practice, permit for extended unpaid leaves as reasonable accommodations for disabled and pregnant employees.