Coordinating Leaves of Absence

Overview

Coordinating leaves of absence (LOAs) under the various federal and state statutes is a daunting challenge faced by employers. They must consider three primary federal statutes— the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA). When the leave is necessitated by a workplace injury, state workers' compensation statutes must also be considered.

The primary emphasis of this toolkit is on coordinating the leave requirements of the three federal statutes listed above and state workers' compensation statutes. Additionally, states may have their own leave statutes in the areas of family leave, medical leave and military-related leave that may provide greater rights to employees than do the federal statutes.

However, these issues are beyond the scope of this toolkit. The focus of this toolkit is to provide a broad working knowledge of many of the key issues related to the topic rather than legal or technical advice.

Background

Three primary federal statutes affect LOAs—the ADA, the FMLA and USERRA. Each statute has its own jurisdictional scope that depends on a combination of the number of employees, the statute's definition of an employee, the nature of the leave and employee eligibility for each leave. See Federal Labor Laws by Number of Employees.

Depending on the particular circumstances, leave under these statutes may need to be coordinated with state workers' compensation laws, other leave statutes, and employer policies concerning sick, vacation and bereavement leave.

The ADA, the FMLA and USERRA have been subject to numerous amendments, judicial decisions and administrative rulemaking over the years. As a result, the legal framework has changed dramatically and continues to change on a regular basis.

The confluence of the FMLA, the ADA and workers' compensation statutes used to be referred to in HR circles as "the Bermuda Triangle." With the addition of military-related leave to the FMLA and the greater prevalence of USERRA issues in the post-Sept. 11 world, the area of LOAs might be more appropriately described as a "minefield" for employers large and small.

Notwithstanding, employers must address real-life situations in light of the current law as it is developing at the federal and state level. See Interplay of ADA, FMLA and Workers' Compensation Training for Supervisors.

Business Case

There is always a good "business case" for the proposition that employers should obey the law. The various statutes impose significant disincentives on employers that choose to ignore or flout the law, including civil damages, recovery of attorney fees and other litigation expenses, and monetary penalties, as well as enforcement proceedings funded by the federal or state government.

Executives who devise or implement strategies to circumvent the law may be subject to individual liability—judgments that can be collected under certain circumstances from their personal bank accounts or liens that may be placed on their homes and personal assets. Insurance may or may not cover such liabilities, often resulting in a dispute with the insurance company over coverage. Violating the law—whether at the organizational level or the managerial level—is always a bad idea.

The business case for LOAs also lies in the fact that human resources are important—and they are only human—which means they have human needs. Just as a machine needs regular check-ups and maintenance, so too do human resources. An LOA policy that goes above and beyond the minimal legal requirements can be useful in attracting the type of employees the organization is looking for. For example:

• A government contractor with significant ties to the defense industry would want to be especially scrupulous about complying with the military-related leave provisions of the FMLA and USERRA. The employer might even want to provide special considerations for military-related employees as a way to attract qualified and valuable employees.
• An employer in high-tech fields would recognize that its future lies to a great part in the knowledge and innovation brought by workers raised and educated in the age of computers, the Internet and broadband communications—and that younger individuals  compose a substantial part of this actual and potential workforce. Thus, an employer should be scrupulous in abiding by leave requirements that affect employees who may be beginning to start families and might want to offer more generous LOA benefits, such as maternity and paternity leave, than required by applicable laws.
• An employer in the health care industry might be wise to afford employees even greater leave than is legally required to obtain health care. "Practice what you preach," as the saying goes.
• An employer in the education field might be wise to afford employees even greater leave than is legally required to attend parent-teacher conferences.

Keys to Effectively Managing LOAs

The keys for employers to effectively manage LOAs are:

• Understanding that more than one law may apply to a given LOA situation (federal, state and municipal laws may apply, and the laws may apply to different situations).
• Determining which laws do or do not apply to a given LOA situation.
• Making sure that the requirements of all applicable laws concerning a given LOA situation are complied with and granting the greatest degree of benefits created by a combination of all applicable laws.
• Establishing a corporate culture that actively seeks to achieve the objectives of the LOA statutes and policies rather than to circumvent them.
• Communicating the legal requirements and decision process to all employees from the C-suite to the newest hire.
• Communicating LOA decisions directly to employees requesting an LOA.
• Documenting the decision process and the fact that employees were informed of their rights and the decision process in each LOA situation.
• Monitoring LOAs continually on a case-by-case basis to determine the appropriate time to terminate an LOA in a particular situation.
• Scrutinizing the effectiveness of LOA practices on an ongoing basis—especially in "human" terms—to determine better ways to deal with future LOA situations.
• Applying metrics to gather and analyze data that can be used to improve management of LOAs in the future.

Coordinating LOAs

Step 1: Determining the "Law of the Land"

The first step in coordinating LOA requirements is to determine which laws apply. This requires an examination of both federal and state laws.

FMLA Jurisdiction and Leave Requirements

The FMLA applies to employers having 50 or more employees. The FMLA requires employers to provide up to 12 weeks of unpaid leave to "eligible" employees for certain allowable family and medical reasons. To be eligible for FMLA leave the employee must have been employed at least 12 months and worked at least 1,250 hours in the previous 12 months. Employers may deny FMLA leave if the employee works at a site that has a combined total of fewer than 50 employees within a 75-mile radius. See Managing Family and Medical Leave.

For many years after the adoption of the FMLA, there were three allowable circumstances for FMLA leave:

• Serious health condition of an employee or immediate family member.
• The birth of a child.
• Placement of a child for adoption or foster care.

Following the terrorist attacks on Sept. 11, 2001, the United States engaged in wars in Afghanistan and Iraq. These wars necessitated calling hundreds of thousands of military Reservists and National Guard members away from their regular jobs and into active duty. The military call-ups had a great impact not only on the personnel being called to military duty but also on their family members. The employers of such persons were also profoundly affected. In response, the Bush administration, the Obama administration and Congress enacted amendments to the FMLA, adding military-related leave under the FMLA as follows:

• Twenty-six weeks of leave for family members caring for military veterans injured while on active duty in the U.S. armed forces.
• Twelve weeks of leave for family members of armed services personnel called up to active duty under certain circumstances.
• Twelve weeks of leave because of any "qualifying exigency" arising out of the fact that a covered employee's spouse, child or parent is on, or has been called to, active duty.

The military-related leave provisions of the FMLA greatly expand the number of persons an HR professional must consider in making LOA decisions. The employee eligible for military-related leave brings into the mix a host of other people to consider: caregivers for a spouse, parent, adult child and "next of kin" (defined as the nearest blood relative).

See What is FMLA military caregiver leave, and who is eligible to take it?

The stark differences between regular FMLA leave and military-related FMLA leave are illustrated by the separate model forms offered by the U.S. Department of Labor (DOL). Employers must know the type of leave and condition at issue in making decisions about granting a LOA, in monitoring it and in terminating its status.

See Managing Military Leave and Military Family Leave.

The FMLA requires employers to be proactive in identifying situations that are qualified for FMLA leave, and to respond accordingly. Frequently, employers make the mistake of thinking that if an employee does not utter the phrase "family and medical leave," there is no obligation on the part of the employer. This is a false assumption.

An employee may take FMLA leave intermittently when the leave is for the serious health condition of the employee or the employee's immediate family member. An employer is not required to permit intermittent leave for the birth of a child or placement of a child for adoption or foster care. Importantly, an employer may require the employee to use any available sick leave or vacation concurrently while on FMLA leave.

The FMLA also has special rules for "key" employees, whereby the key employee need not be provided the same reinstatement rights as other employees.

The FMLA affords the employer the right to require recertification of the need for leave on an ongoing basis. This right may not exist in non-FMLA situations. S

ee Can we require a physician's note every time an employee misses work while taking FMLA intermittent leave?
 
The FMLA has a definitive cutoff point for its coverage, whereas the duration of protections under the ADA, USERRA and state workers' compensation laws are not so definitive.

See What Should Employers Do When Workers Exhaust FMLA Leave?

For more information about the FMLA generally, see Checklist: FMLA Compliance and How to Approve or Deny FMLA Leave.

ADA Jurisdiction and Leave Requirements

The ADA applies to employers having 15 or more employees. The ADA may require a LOA as a "reasonable accommodation" to a qualified person with a disability. See Accommodating Employees' Disabilities.

For example, if an otherwise-qualified person needs an LOA to address a disability as defined by the statute, regulations and case law, the employer may be required to permit it. Conceivably, the LOA could even be in the form of intermittent leave or a reduced work schedule—as a reasonable accommodation. These are familiar concepts under the FMLA, which may be pulled into LOA decisions under the ADA. See When Must Employers Provide Leave Under the ADA?

Frequently, employers make the mistake of thinking that if an employee does not say the phrase "reasonable accommodation" or "Americans with Disabilities Act," then there is no obligation on the part of the employer. This is a false assumption. An employer should begin the interactive process with an employee once they are aware that a reasonable accommodation may be necessary due to an employee's disability. The exhaustion of other types of leave, such as FMLA, can often trigger the need for an ADA accommodation. See Request for FMLA Leave Can Serve as Request for ADA Accommodation.

USERRA Jurisdiction and Leave Requirements

USERRA applies to all employers, regardless of size, and to all regular employees, regardless of position or full- or part-time status. USERRA regulates LOAs taken by members of the uniformed services, including Reservists, and by National Guard members for training, periods of active military service, funeral service honors duty and time spent being examined to determine fitness to perform such service.

USERRA also applies to persons serving in the active components of the armed forces and the National Disaster Medical System (NDMS) as well as reservists for the Federal Emergency Management Agency (FEMA) when they are deployed to disasters and emergencies on behalf of FEMA.

See Managing Military Leave and Military Family Leave.

Eligibility under USERRA is generally a matter of giving proper notices to the employer and not spending more than five cumulative years on military leave.

USERRA provides four important benefits related to military leave:

• Protection from discrimination on the basis of military service.
• Protection from termination for a period after returning from service.
• The right to re-employment on conclusion of military service.
• Certain rights in connection with pensions and other employee benefits plans.

Several aspects of USERRA leave are unique to the military leave situation and are different from FMLA leave. Employers should be aware of, and comply with, these aspects of USERRA leave.

Workers' Compensation Jurisdiction and Leave Requirements

Every state has a workers' compensation system. The basic premise is that if an employee sustains an on-the-job injury, the injury will be addressed under a statutory system of mandatory compensation rather than through the common-law system of personal injury liability. Workers' compensation statutes create a legal compromise that benefits both employers and employees, but state laws vary in the way that they strike that compromise.

See Workers' Comp 'Exclusive Remedy' Rule Barred Barista's Lawsuit.

The red flag for implication of state workers' compensation statutes is the existence of an on-the-job injury. When an injury is deemed to fall within the workers' compensation scheme, leave may be required.

Workers' compensation statutes typically apply to all employers regardless of size; however, very small employers (such as sole proprietors) may be permitted to opt out of the workers' compensation system.

Other State Law Leave Requirements

Almost all states have enacted laws providing for leave in certain "family," "medical" and "military-related" situations. Every state has a military leave law. When states legislate in these areas, they usually do so to provide greater protections to employees than is provided under federal law. For example, a state may provide the same protections afforded under the FMLA or the ADA but make them applicable to every employer even if there is only one employee.

A state may require family leave to address situations such as attending parent-teacher conferences or funerals. A state may require leave to be paid by the employer. California, in particular, is recognized as a leader in expanding laws related to the benefits of employees—with corresponding costs to employers. HR professionals must always go to the second level of applicable laws—the state level—to determine which rules apply to a particular LOA situation.

State laws tend to change even more frequently than federal laws. Hence, HR professionals faced with LOA situations must be up-to-date on the status of the applicable state law. See Multistate Laws Comparison Tool.

When an employer has an employee working in a state other than the principal place of business, the employee may have the protections of that state's leave laws as well. This may be true even if there is a written employment agreement designating the law of the state where the principal place of business is located as the chosen law to govern the employment relationship. See How Can Employers Navigate Multiple Leave Laws?

Municipal Leave Requirements

Although rare, municipalities sometimes move into the realm of promising employment-related rights to local residents greater than those available under federal and state law. Usually, this is a matter of affording rights to employees of the municipality. However, sometimes, municipalities pass anti-discrimination regulations applicable to all persons residing in the municipality or doing business in that location. Such local regulations—whether based on family, medical, disability or those that are military-related—can conceivably cross into the area of LOAs.

HR professionals should familiarize themselves with the municipal regulations where their major operations are located. When an LOA issue arises involving an employee working outside the "home" location, it is a good idea for HR professionals to check the municipal regulations that may apply where the employee is located and where their organizations' distant employees are located.

Step 2: Reviewing Organization Policies, Procedures and Practices

The second step in coordinating LOA requirements is to determine what the organization's policies say about LOAs and what managers may have represented or promised that goes beyond the stated policy or that is in conflict with the stated policy.

Managers often make representations about organizational policy that do not conform to the actual policy. This is usually a matter of the manager not being informed or up-to-date about what is actually in the employer's policy manual. It is also common for managers to make exceptions to organizational policy for employees they value or pity more.

Additionally, it is common for managers to tell employees that they do not have leave rights that they do indeed have. See Employer Erred in Failing to Notify Injured Employee of FMLA Rights.

Written and oral representations and promises by managers to employees about available leave may be legally enforceable, or "actionable," under the common-law theories of contract law, promissory estoppel, fraud and negligent or intentional misrepresentation.

Accordingly, in every LOA situation HR must speak to the employee requesting leave and to the employee's supervisor(s) to make sure that organizational policy has been followed and that everyone understands the ground rules.

See:

FMLA Training for Supervisors
Interplay of ADA, FMLA and Workers' Compensation Training for Supervisors
Workers' Compensation Training

A collective bargaining agreement in a unionized workplace may also address the issue of LOAs. At this point, the HR professional addressing an LOA situation may potentially be faced with a confluence of three federal statutes, three state statutes, one or two municipal ordinances, a written policy, and a verbal or written representation or promise by a manager that differs from the written policy, plus a collective bargaining agreement. Even the simplest LOA situation can be difficult to address. The multiplication of ground rules increases the difficulty exponentially.

What HR Professionals Should Do at the Outset Where the Various LOAs Intersect

There are innumerable permutations of the intersection among the FMLA, the ADA, USERRA, and state workers' compensation and other leave laws. Representations and promises made by managers can create even more permutations. Employers should be proactive in seeking information from employees as to any and all LOA laws and situations that may be applicable to a particular situation. Accordingly, certain statements made by employees should prompt employers to seek further clarification:

• When the employee mentions his or her own health condition, the HR professional should inquire further to determine whether the health condition qualifies as a disability under the ADA, is a serious health condition under the FMLA or both.
• When the employee mentions his or her own health condition, the HR professional should inquire to determine whether the injury or illness was work-related and therefore possibly covered by workers' compensation statutes.
• When the employee mentions the health condition of a spouse or child (biological or adopted), the HR professional should inquire further to gather information as to what federal and state laws may apply.
• When the employee mentions any connection of his or her work circumstances with military-related circumstances of the employee or a family member of the employee, the HR professional should inquire further to determine whether this is an FMLA case, an ADA case, a USERRA case or a combination (and under state law counterparts).
• When the employee requesting leave says, "My supervisor told me . . ." or "The handbook says . . .", the HR professional should verify the accuracy of such a statement.

Employers should be proactive in seeking such information; they should not sit back and hope against hope that the employee does not say the "magic words" ("disability," "FMLA," "ADA" or "workers' comp").

Employers should afford the greatest benefit that results from the application of all applicable laws. For example, if an employee with a serious health condition (under the FMLA) also constitutes a disability (under the ADA), the employer may need to consider a reasonable accommodation of additional time off once the employee has exhausted FMLA leave. Additional assessments should be made relative to all of the various federal and state statutes that may be applicable to a particular leave situation.

Dealing with Sick Leave, PTO, Vacation and Other Types of Leave

Generally, employers are permitted to require employees to use accumulated sick leave, paid time off (PTO) and vacation leave even when taking leave under the FMLA. Normally, employers can require such leave to run concurrently with FMLA leave. The situation may be different under the ADA and USERRA depending on the particular circumstances. Also, what the employer's published policies state makes a difference because representations and promises in published policies (or even oral statements of managers) may supersede the statutory requirements.

Under the ADA, leave is not guaranteed or limited as to any particular length of time; leave must be given if it is a reasonable accommodation to a person with a disability under the ADA. Thus, an employer may need to give leave as a reasonable accommodation under the ADA even after sick leave, PTO and vacation have been exhausted.

See ADA Leave Beyond FMLA Time Off May Be Required and When Does Lengthy ADA Leave Constitute an Undue Hardship?

Employers may not require a person on military leave covered by USERRA to use accrued paid time off during such leave. However, a person on USERRA leave may choose to utilize their paid time off while on USERRA leave.

See Do I have to pay an employee on military leave? Can I require the employee to use paid time off/vacation time?

Step 3: Approving/Disapproving LOAs and Documentation

After determining the "law of the land"—whether pursuant to federal, state, municipal or organizational promises—the HR professional must make a decision about the terms and conditions of leave being approved or disapproved. Employers should be careful about stating the terms and conditions of any LOA because it is very easy to make mistakes that could hurt the organization and the HR professional, as well as the employee taking leave.

Under the FMLA, HR professionals may be, and have been, sued for interfering with an employee's leave rights. There are also many more ways for an HR professional to be held individually liable to an employee and even to the HR professional's employer.

HR professionals should strive to document this phase of the process in writing. Large organizations may adopt a required form. In small organizations, an e-mail note may suffice. HR should always have written evidence of communications such as these, which can have profound implications.

At this point in time, the HR professional will have assessed the situation and either approved or disapproved an LOA under certain conditions; however, the job of the HR professional with respect to an LOA does not end there.

Again, HR professionals dealing with LOA issues should communicate frequently, completely and provably (i.e., in writing) as to how LOAs will be, and are being, handled.

See:

Checklist: Individual FMLA Leave Request

FMLA Employee Request Form

Letter to an Employee Who May Be Eligible for FMLA

ADA Reasonable Accommodation Request Form

ADA Letter to an Employee in Response to a Request for Accommodation

ADA Accommodation Approval Letter

ADA Accommodation Denial Letter

Step 4: What HR Professionals Should Do as the Situation Progresses

HR professionals dealing with LOA issues must keep on top of things. Although it sounds burdensome, every current LOA situation should be reviewed on a weekly basis for new developments. Some sort of written communication with the employee or a medical professional will likely be necessary or prudent on a monthly basis. LOAs cannot be set aside and forgotten about. This is true for the following reasons:

• The requirement to provide unpaid FMLA and USERRA leave eventually runs out. Usually, employers would prefer to have their business needs met rather than have an open-ended option to return to work in the same position, at the same pay or with "escalation" in position and pay during the leave. Most employers draw the line where the applicable laws draw the line.
• HR professionals should keep in mind the "human" aspect of HR, inquiring sensitively about the employee's personal circumstances. Examples of appropriate questions include the following:
  • "How is it going for you?"
  • "Do you understand the organization's LOA policy, and how is that working for you?"
  • "Is there anything you would like me to be doing here at the company to help you out in terms of your LOA?"

• People change. The relationship with an employee on LOA that begins friendly can turn quite sour if something goes awry in the medical diagnosis or in terms of feedback from the employer. For example, an employee who goes on leave for menstrual cramps but ends up being diagnosed with ovarian cancer is likely to view things differently at the end than at the beginning. An employee who hears through back channels that he is no longer appreciated as a top performer because he is on leave for treatment of testicular cancer might just sue for invasion of privacy or defamation.
• Privacy is paramount; however, HR professionals should inform themselves on an ongoing basis about LOA situations. HR should document any significant developments. Usually, this means documenting everything because one does not know that a development will be "significant" until it is too late to contemporaneously document it.
• HR professionals should recognize that the LOA will eventually come to an end. It is at the end of an LOA that the employee on leave usually starts making serious threats of legal action. If everything has been handled well by the HR professional, threats of legal action are unlikely. Under the FMLA, the employer has the ability through medical recertification requirements to bring FMLA leave to an end when there is no longer a need for it. Although this is a useful management tool, it brings with it a good deal of administrative inconvenience and legal risk. Similarly, leave under workers' compensation statutes may be subject to ongoing examination certification processes. Typically, employers have insurance coverage for workers' compensation liability, and the insurance carriers usually provide legal guidance to covered employers. Employers facing workers' compensation situations should always use the resources of their workers' compensation carriers on leave issues.

See:

Can we terminate an employee when FMLA leave has been exhausted if the employee is on workers' compensation or has a disability covered under the ADA and is unable to return to work? 

Confidentiality Is Key When Employees Are on FMLA or ADA Leave.

Step 5: Ongoing Evaluation and Metrics

HR professionals at even the smallest organizations should constantly evaluate what is, and is not, effective in terms of LOAs. For example:

• Policies may need to be revised and communicated to employees.
• Forms should be developed or revised to deal with LOA situations.
• The law of LOAs should be communicated to employees from the C-suite down to the newest hire by means of posters, manuals and training.
• The corporate culture of LOAs should be communicated to employees from the C-suite down to the newest hire in the same ways, but perhaps with specialized training for management-level employees.
• For large organizations, metrics should be applied to the entire LOA conundrum to make better sense of the situation so as to make better decisions regarding LOA policies, procedures and decisions in particular LOA situations. For small organizations, application of metrics to the LOA situation is probably not cost-effective or statistically significant.

Employers can gain competitive advantage by measuring what they do, and then acting on those data. Every employer should have some idea of how well its LOA compliance and policies are working. For small organizations, this may just be a "gut feel." For large employers, this may be a highly systematized collection and analysis of data aided by computer programs.

For the vast majority of employers, the metrics of LOAs are a matter of seeing what works and what does not work—that is, learning from experience. Even one employee claim or lawsuit over an LOA issue can skew the determination far toward the "did not work" side—especially in a small organization.

Communications

At a minimum, the employer should post notices of the LOA rights afforded by law, and as required by law. This is usually done in an employee break room or other place readily accessible to employees. Official posters are available from the federal and state government and from private providers. Large employers should have multiple postings—for example, on every floor of a multifloor building. HR professionals should periodically make sure that the postings are still up and that they have not been defaced.

Some laws, for example, the FMLA, require that advisement of legal rights be put into any employee handbook or policy manual. An appendix to the employee handbook—with receipt acknowledged by the employee—of all currently applicable policies and legal advisements would be a valuable resource in the event of any litigation over LOAs.

When making LOA decisions, HR professionals would do well to document the decision process and obtain acknowledgement of the employee to at least the fact that a decision has been made. It will always be beneficial to the employer to have a written memorandum signed by the employee recording the terms and conditions of the LOA. An employer might also seek an acknowledgement by the employee of the appropriateness of the LOA being granted.

Technology

In terms of LOAs, technology may be as simple as a handwritten note and may graduate to dedicated software to monitor LOAs. A human resources information system (HRIS) will likely have such abilities. The level of technology employed depends on the size of the issue. Generally speaking, using technology at a level above what was previously used is a good idea. For example, in situations in which a handwritten note might have once sufficed, a formal memo or e-mail should be used now—to preserve the content of the communication, to record its date and to make it easy to produce in the event of litigation. Even small organizations should maintain computerized records of time off for any reason, especially family, medical or military reasons. This can be done through a word processing document, a spreadsheet or a dedicated computer program. If litigation is threatened or commenced, the organization's attorneys will be glad to receive detailed computerized records. See Employers Use Technology and Outsourcing to Ease Leave Management and Choosing the Right Leave Management Vendor Pays Off.

Additional Resources

Forms

FMLA Model Forms
Checklist: FMLA Compliance
Checklist: Individual FMLA Leave Request
FMLA Recertification Letter

Policies

ADA/ADAAA Policy
Critical Personal Leave of Absence Policy (Non-FMLA and Non-Military)
Leave Request Policy
Military Leave of Absence Policy
Unlimited Paid Leave Policy (Exempt Employees)
Unpaid Personal Leave of Absence Policy