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Your Employee Might Need Leave…Now What?

What is Required When Implementing Leave of Absence Policies?
By Charlotte Altamirano, HR Consultant

Navigating leave of absence policies at the workplace can be tricky – so tricky that the HR world is calling leave policies the “New Bermuda Triangle.” These policies can spark a lot of questions for employers and employees, such as:

  1. Who is eligible?
  2. What are the employer’s legal requirements?
  3. How does a serious health condition come into play with FMLA and ADA?

The Bermuda Triangle is known for its mystery, but leave policies don’t have to be! Starting with some quick facts helps demystify employer obligations.

Workers’ Compensation (WC) applies to all employers and employees.

Family Medical Leave Act (FMLA) applies to any business with 50 or more employees. Employees are eligible for FMLA when they meet all three of the following criteria:

  • They have worked for the employer for at least 12 months
  • They have at least 1,250 hours of service with the employer during the 12-month period immediately preceding the leave
  • They work at a location where the employer has at least 50 employees within a 75 miles radius

If an employee is eligible for FMLA, they are able to take up to 12 workweeks in a 12-month period of leave.

Americans with Disabilities Act (ADA) applies to any business with 15 or more employees.

Employers need to be ready to handle each leave policy individually, even though the policies may overlap. Some of the most important considerations for employers include:

  • Make sure the company has an FMLA policy when required and avoid an inflexible leave policy.
  • To protect the company, consistency is key when handling leave policies – what the company offers one employee should be offered to all, as needed, even when circumstances differ.
  • Employers must engage in the interactive process with the employee requesting a leave. Each case is going to be different and it is important to go through a documented interactive process with the employee to ensure the company is in compliance.
  • The employer needs to be aware of required accommodations when it comes to leave requests.
  • It is very important for managers to understand various situations that may require FMLA leave or ADA accommodations. (Training in this area is beneficial to avoid liability when an employee requests a leave.)

It is important that an employee is given leave-specific information. For example, if a Fitness for Duty Certification is required with the company’s FMLA leave policy, make sure that the employee is informed in the Designation Notice. With ADA leave and a Fitness for Duty Certification, make sure to always tie the certification back to the job. This is essential because it ensures that the company is in compliance with administering the leave and adhering to the rights of the employee under ADA.

If a Workers’ Compensation leave has been triggered, an FMLA leave might be required thereafter, possibly followed by an ADA leave, too! This is where the waters can get murky. If a company has a flexible leave policy, stays engaged in the interactive process with its employees, and keeps all certifications tied back to the specific job, the waters will begin to clear.

Leave policies at the workplace don’t have to be mysterious. One of the most important parts of a company’s leave policies is spotting the need for a leave. Training managers and supervisors to ensure they understand requirements will save the company from lawsuits and ensure compliance with all of these different laws. Employees are not required to specifically say they need an accommodation or leave in order to be protected under these laws. Managers need to understand when to start these conversations and get guidance in navigating the multitude of requirements that employers must follow. Under these laws, the employer has the burden of determining when FMLA or ADA or Worker’s Comp is at play, not the employee. The employer must determine the best way to navigate and comply with the requirements while ensuring employees get leave time when they need it. This assessment usually starts with the employee’s manager; it is imperative that managers be knowledgeable and skilled in identifying when these needs arise. There are obligations to the employer even when the need for leave doesn’t seem legitimate or an employee doesn’t know exactly what they need.

Designing a training program on how to handle leaves can be intimidating. HRinDemand is your solution! We have several training programs that can be customized for a company’s unique situation and needs.

HRinDemand can also help implement successful tracking strategies, notice and communication guidance, assistance with engaging in the interactive process and refine leave policies to benefit the company and its employees.

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