Leaves of absence: problems and pitfalls

by Bent Ericksen and Tim Twigg

It is not unusual for employees to ask for time off. The time off requested may be for a few days or several months, and the reasons given are many and varied. With so many different types of leave available, employers have questions such as:

• Do I have to provide the leave?
• What about paying the employee while on leave?
• Do benefits continue while an employee is on leave?
• What about job retention; i.e., holding the job for the employee’s return?

Whether mandated or discretionary depending upon the number of employees and/or your particular state, the following breakdown of common types of leave and key points for successfully handling each will help address these questions.

For all leaves of absence, keep thorough documentation in the event that your compliance with various laws comes into question. A Leave of Absence Request form (call us for Form No. 409) is an essential part of the documentation.

Leave for occupational disabilities

A work-related injury or illness may necessitate leave. When a work-related injury or illness is supported by a health-care professional’s written report, then a leave must be granted. The length of the leave is not clearly defined by law; this will differ from one injury to the next.

If the report states that the employee can work with some limitations (i.e., lifting restrictions, reduction in the number of hours the employee can work, etc.), the employer must enter into a “timely, interactive process to determine an effective, reasonable accommodation.” This means that the employer must discuss the limitation with the employee and attempt to accommodate the request.

Paying wages while the employee is on leave is not mandatory, but holding the position for his or her return is usually required. Employer-sponsored health insurance, if applicable, can be discontinued during a leave. However, state health-care continuation and/or federal COBRA laws may require that employees be allowed to continue their coverage on a self-pay basis.

Family and Medical Leave Act (FMLA)

In general, the FMLA applies to employers with 50 or more employees, but a growing number of states have similar leave requirements that apply to small employers.

The FMLA allows “eligible” employees of a covered employer to take job-protected, unpaid leave, up to a total of 12 work weeks in any 12-month period due to:

• The birth, adoption, or foster placement of a child
• The employee’s own serious health condition
• The serious health condition of an employee’s family member (spouse, child, or parent)

In certain cases, this leave may be taken on an intermittent basis rather than all at once.

An employee generally has a right to return to the same position or an equivalent position with equivalent pay, benefits, and working conditions at the conclusion of the leave.

An employee may elect, or an employer may require the employee, to substitute any accrued paid vacation or sick leave for any part of the 12-week period of the leave.

Individual state family and medical leave laws can differ significantly from the FMLA. Where state law provides more stringent provisions than federal law, the state law takes precedence.

The employer must maintain and pay for coverage under any group health plan for the duration of the leave under the same conditions that would have prevailed if the employee were still working.

Pregnancy disability leave

In addition to the FMLA provisions outlined above, several states have implemented their own pregnancy disability leave regulations that often have stricter terms. Even further reaching is the Pregnancy Discrimination Act (PDA) and antidiscrimination laws based on sex.

Currently, the following states have pregnancy disability leave laws: California, Connecticut, Hawaii, Iowa, Louisiana, Massachusetts, Ohio, and Washington. Each individual state law varies in the length of leave required and the reinstatement to work rights.

In all cases, however, the leave of absence can be without pay. At the employer’s discretion, any earned paid sick or vacation time may be used concurrently with the leave. Furthermore, it is not mandated that these benefits continue to accumulate while the employee is out on leave.

Employer-sponsored health insurance, if applicable, can be discontinued during a leave. However, state health-care continuation and/or federal COBRA laws may require that employees be allowed to continue their coverage on a self-pay basis.

Employers who are not covered by the FMLA or other state-mandated pregnancy leave laws may be covered under the PDA or other antidiscrimination laws based on sex. The PDA applies to employers with 15 or more employees. The number of employees an employer must have to be covered under other antidiscrimination laws based on sex will vary. Most small employers (fewer than 15 employees), however, are covered.

These laws require employers to treat pregnant employees just as they would nonpregnant employees. Therefore, if the employer has provided or would provide leave, as well as intermittent leave, to an employee who was disabled for nonpregnancy-related reasons, then the employer must do the same for the employee who is disabled due to pregnancy.

Jury or witness duty

When an employee is summoned to serve as a juror or witness, he/she is protected by law, regardless of the employer’s size. Discharging, threatening to discharge, intimidating, or coercing any employee by reason of the employee’s jury service, attendance, or scheduled attendance in connection with jury service is prohibited.

Employers should grant a leave of absence to all employees who are summoned to serve. Whether or not the employer must pay wages to employees during the leave is determined by individual state law. If state law does not require payment of wages, employers cannot require employees to use eligible paid time off benefits while serving.

Upon return from the leave, the employee must be reinstated to the same or similar position.

Military leave

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is applicable to all employers regardless of size. Under USERRA, employees who are on active duty in any U.S. military branch must be granted unpaid military leave. With some limitations, USERRA guarantees reinstatement to work for all covered employees, without loss of seniority.

Parental leave for school visits

Currently California, the District of Columbia, Illinois, Louisiana, Massachusetts, Minnesota, North Carolina, Nevada, Rhode Island, and Vermont all have laws granting employees job-protected unpaid time off to participate in various school-related events. The provisions for eligibility, reasons for the leave, and the length of the leave vary.

Voting

Voting leave is mandated by each individual state, not by any federal law. Currently, 30 states, plus the District of Columbia, have enacted voting leave laws. These state laws stipulate how much time off must be provided, whether or not the time off is to be paid, as well as other restrictions and/or requirements in granting voting leave time.

If the employer resides in a state that does not have a voting leave law, then providing time off for such a purpose is at the employer’s discretion.

Summary

Bent Ericksen is the founder and Tim Twigg is the president of Bent Ericksen and Associates. For more than 25 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. Both authors are members of the Academy of Dental Management Consultants. To receive a complimentary copy of the company’s quarterly newsletter or to learn more about their services, contact them at (800) 679-2760 or at www.bentericksen.com.