Employee Leave Can Be Complicated

Coordinating family and medical leave requirements is often a complex and daunting task for HR professionals.

By Lisa Nagele-Piazza, J.D., SHRM-SCP November 23, 2020
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Employee Leave Can Be Complicated

​An employee who is sick or who needs to care for a sick relative may be entitled to take job-protected leave under a host of federal, state and local laws—and complying with these laws can be a daunting task for HR professionals. 

Among the questions to consider: Does the employee meet eligibility requirements? Is the time off paid? Can leave be taken intermittently? Does the leave run concurrently with other paid time off? The answers will depend on the reason for the request and the type of leave available.

“Employers need to understand how the various leave laws interact with each other,” says Michael DuPont, an attorney with Wagner, Falconer & Judd in Minneapolis and a member of SHRM LegalNetwork, which provides affordable legal help to small businesses.

During 2020, much of the focus regarding leave has been on the Families First Coronavirus Response Act. But workers also may be eligible to take time off under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and state and local laws.

“This is a complex area that is ever-changing,” DuPont notes. “Make sure you have solid guidance.”

Interactive Dialogue 

Jackie Gessner, an attorney with Barnes & Thornburg in Indianapolis, suggests that employers actively engage with workers who request leave and that they respond quickly to questions. “When situations become complicated, which they often do, it will be advantageous for the employer to keep the lines of communication open,” she says.

Employers with at least 50 employees must comply with the FMLA, which provides eligible workers with up to 12 weeks of unpaid leave to care for their own serious health condition or that of a covered relative, among other reasons. 

Employees who work at a location where the business employs at least 50 employees within a 75-mile radius are eligible for leave if they have worked for the employer for at least 12 months and for 1,250 hours during the previous 12-month period.

The leave is job-protected, meaning that employers must reinstate workers to the same or an equivalent job when they return to work.

So what happens when an employee isn’t eligible for FMLA leave or can’t return to work when the leave runs out? Jeff Nowak, an attorney with Littler in Chicago, says this is one of the most difficult issues HR professionals face. 

Is additional leave required in this situation? If so, how much leave must be offered? Employee requests will need to be evaluated on a case-by-case basis. 

“FMLA may be just the beginning of the leave process with an employee,” says Megan Winter, an attorney with Fisher Phillips in San Diego.

Employers should pay particular attention to disability laws that may provide workers with time off as a reasonable accommodation for their own medical condition. The federal ADA applies to employers with 15 or more workers, and state disability laws may apply to smaller businesses. 

“In all jurisdictions, the employer must engage in the interactive process with an employee requesting additional leave and provide the additional leave time unless the employer establishes that additional leave would create an undue hardship,” Winter explains. 

Obtaining information from the employee’s health care provider may be critical, says Angelo Filippi, an attorney with Kelley Kronenberg in Fort Lauderdale, Fla. Such information can help the employer determine whether a worker is capable of performing essential job duties with or without an accommodation.

To assess whether leave can be provided as a reasonable accommodation, employers should obtain an estimate of when the employee expects to be able to resume all essential functions of the position.

“Despite the uncertainty,” Nowak explains, “one general rule has always been clear: An employer is never required to provide an employee an indefinite leave of absence.” 

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Looking Beyond Federal Law

“It’s not enough to just coordinate employee leaves based on federal law,” Winter says. Some state and local leave laws run concurrently with federal laws, and some extend the allowable leave time. Additionally, state and local laws may apply to smaller businesses and cover more reasons for taking time off. 

For example, the California Family Rights Act (CFRA) will be significantly expanded as of Jan. 1, 2021, to cover businesses with at least five employees. CFRA also includes more relationships, such as domestic partners, in its definition of “family members” for whom leave can be taken. The California Fair Employment and Housing Act—the state’s anti-discrimination law—also covers employers with five or more employees and has a broader definition of “disability” than federal law. 

“As most employers know, FMLA leave is unpaid,” DuPont notes. “But many states and cities have imposed paid-sick-leave and paid-family-leave laws on employers.” 

At least 13 states, the District of Columbia, and several counties and cities have passed laws requiring employers to provide paid sick leave, and nine states and the District of Columbia have also approved paid family and medical leave insurance programs, according to the National Conference of State Legislatures. 

Furthermore, employers may have policies that offer additional benefits such as paid time off, vacation, sick leave, and long- and short-term disability. Even when employers voluntarily provide such benefits, policies must be consistently applied once they are established, Filippi says. Failure to do so may create the risk of a disparate treatment claim if an employee who is denied leave can identify a similarly situated employee outside of his or her protected class who was treated more favorably.

Tips for Employers

“Compliance can be very complicated,” Winter says, “particularly in the case of ongoing, intermittent leaves or those that involve overlapping state or local laws.” She recommends taking one step at a time and consulting employment counsel when uncertainties arise. 

The Equal Employment Opportunity Commission’s decision to bring an ADA discrimination lawsuit against an employer often hinges on whether the employer is to blame for a breakdown in the interactive process, so communication is key. Communicate with employees before they take leave, while they are out and after the leave ends, Nowak recommends. “Flexibility and collaboration will go a long way toward maintaining employee morale and helping employees return to work.”  

Lisa Nagele-Piazza, J.D., SHRM-SCP, is SHRM’s senior legal editor.

Illustration by Adam Niklewicz for HR magazine.

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