Posted on August 13th, 2018
You have an employee leave of absence to deal with. That much you know. But, what you don’t know is how long the leave is going to be and how long you need to keep their job open.
You count on the productivity of your employees to keep your business profitable. But there’s more to an employee’s life than work. Sometimes, circumstances may force them to take a leave of absence, and for more than just a day or two.
But absent employees (especially in key positions) can cost you big. This study shows how companies $450-550 billion in lost productivity with absentee or disengaged employees.
So how can you know how long is too long to have an employee gone?
Are there laws governing the length of their leave?
The short answer is yes, and, if you read this article, you’ll find out what they are, what they cover, and when you can cut the cord. And (surprisingly) you as the employer do have some rights in this area.
What Does Leave of Absence Mean?
Before we delve into the legalese, let’s go over some vocabulary. A leave of absence is an extended time off from work, usually a week or more.
There are two types:
- Mandatory
- Voluntary
The law governs mandatory absences and includes:
- Military Duty
- Jury Duty
- Certain Medical Conditions
Voluntary leave, such as personal days or vacation time, aren’t covered by the law. Instead, company policy dictates how long employees can stay away from work. These policies should be made clear to every employee.
What Laws Govern It?
Two laws cover extended absences: the FMLA and the ADA. Each has strict qualifications that not all companies, or all employees, meet.
The FMLA (Family and Medical Leave Act)
The government first enacted the FMLA in 1993. The idea was to help employees balance their family obligations with their workplace responsibilities.
Under this law, employees may take time off for up to 12 weeks in a 12 month period. This leave is unpaid. However, employees may combine it with any paid personal days they’ve accrued.
The medical conditions covered by the FMLA include:
- Birth and Bonding Time (Maternity Leave)
- Miltary Duty or Care of a Service Member
- Serious Health Condition of the Employee or Employee Family Member
To qualify for FMLA status, employees must work for at least a year, for 1,250 hours or more during that year. That equates to about 156 days.
Employers are only mandated to follow the FMLA if the company has 50 or more employees. Employers may also ask for verification, at which time, employees must produce it within 15 calendar days.
Once the leave ends, employers must reinstate the employee. They must offer either the same job or a comparable one.
The ADA (American with Disabilities Act)
First enacted in 1990, the ADA prohibits discrimination based on a disability.
The law defines “disability” as:
- A physical or mental condition that limits a major life activity
- A history of a disability (i.e., cancer)
- Has a physical or mental impairment that is non-transitory (lasts six months or less) or minor
The law requires employers to make reasonable accommodations so that the employee may perform his or her job. That accommodation may include time off.
Moreover, the company doesn’t have to accommodate anyone if it has less than 15 employees, or if it would impose an undue hardship.
That undue hardship may include time off.
The ADA doesn’t specify how long employees may take leave. It’s usually up to the employer and employee to work it out.
Courts have narrowed it down to three factors:
- The Nature of the Job
- The Length of Time Needed
- How Much Time Provided in Other Circumstances
The vagueness of the law makes ADA-based time off a bit dicey. Employees have to meet the definition of disabled and still be able to do their job. Employers may also provide other accommodations other than leave.
It’s best to check with HR or an ADA lawyer to make sure you aren’t violating the law.
What About Company Policy?
Companies can set their own policy regarding leave. Most do.
HR should keep these policies on record, and all employees should have it in their custom policies and procedures handbook. If an employee fails to follow procedure, employers are not obligated to hold their job.
Company policy should comply with the current laws. It’s best to audit it every two years or so. Nobody wants to be on the wrong end of a retaliation suit.
You should include notification procedures, specific lengths of time off, and any accommodations for disabled employees. Employees who know the rules can’t make excuses of ignorance.
How Do You Know If an Employee’s Abusing Policy?
Check for patterns of behavior. Does the employee take multiple days off per week? Are they disengaged? Most likely, you should fire those employees anyway.
But if someone’s taking a lot of sick days, offer support. Ask if there’s anything you can do to help. You might be able to qualify them for protected job status to take care of their issues.
Companies are businesses, and excessive absences can slow them down.
Where Can I Find Answers to More Legal Business Questions?
You only have to hold a job legally for the length of time specified in the law. Barring that, it’s up to your own company policy. If an employee is absent for too long, and your company doesn’t need them, you can let them go.
Want to know more?
A leave of absence isn’t the only legal issue weighing on businesses. There’s worker’s comp, labor unions, overtime, sexual harassment. Odds are you have questions.
Well, we’ve got answers. We’re Defend My Biz, a law firm dedicated to giving the California employer a fighting chance.
Check out our blog for more insightful articles. We’ve got everything you need to know on workplace law.
Or contact us today for a free consultation. It takes only 15 minutes and you’ll be more well prepared for any issues with leave of absence.
