Certain basic principles apply to the process of considering and granting a leave of absence. We recommend following this checklist when deciding whether a leave must or should be granted.
1. Is Your Company Big Enough to be Covered by the Mandatory Leave Laws? Certain leaves, like FMLA or CFRA, are only required for companies that have a certain number of employees within a certain radius. The first question to ask is "are we big enough to be required to provide this employee with the leave that is requested?"
2. Does this Employee Meet the Conditions Required for the Leave? Some leaves, like FMLA and CFRA, require that the employee has worked for the Company for a certain period of time and a certain number of hours before they are eligible for the leave. The Company needs to ask whether this employee meets the threshold requirements.
3. Is the Reason for the Leave covered by any Mandatory Leave Laws or Your Policies? As outlined above, certain employers must give certain employees time off for certain mandated reasons. If the reason given is not one that is covered by the laws or required by your policies, for example time off to care for a sick friend, then you may not be required to or want to grant the time off.
4. If the Leave is Not Required by Law or Policy, Do You Want to Grant It? In considering this question, you will want to ask questions like: Have we offered this leave before? Do we want to create a precedent by doing so now? Offering the leave on one occasion may create an obligation to do so in the future and may create a dangerous precedent.
5. Has the Employee Provided the Necessary Documentation for the Leave? For example, under the FMLA and CFRA for a leave taken for serious health condition, a physician should certify the need for the leave. This is true for pregnancy disability leave and leaves in accommodation of other disabilities as well. As another example, you may require that employees provide proof they were called to jury duty. Employers need a consistent practice of requiring this certification before a leave is granted.
6. Will the Leave be Paid or Unpaid? Does the law require that you pay some or all of the leave? Do your policies promise that you will pay some or all of the leave?
7. May an Employee Apply Accrued Vacation, Sick Leave or Paid Time Off to the Leave? Must They? Some laws allow you to require that an employee apply accrued time off to their leave. For example, employees may be required to apply accrued sick leave to a pregnancy disability leave or to an FMLA or CFRA leave taken for their own serious health condition.
8. Will an Employee Continue to Accrue Vacation, Sick or Paid Time Off During the Leave? Most of the leave laws allow the employer to choose whether to continue the accrual of time off benefits. Remember, whatever you choose in many cases must be consistently applied to other leaves.
9. Will Insurance Continue During the Leave? Some laws, like FMLA and CFRA, require that the employee remain on the employer's insurance policies as they are during regular employment (FMLA and CFRA require this for a period of up to 12 weeks). The key here is deciding what you want to do for leaves that are not governed by the law on this subject. In the absence of a decision, the employee may remain on your insurance at your expense.
10. How Will the Leave Affect Seniority and Accrual Rates? Some laws, like military leave laws, require that seniority continue to accrue during a leave. Most laws allow the employer to freeze in time the employee's seniority. If you want to suspend seniority-based rights during certain leaves, you need to do so during all time off. For example, if an employee's time off during vacation does not suspend her accrual of additional rights like a new level of vacation accrual, then you cannot suspend accrual of these rights during a pregnancy disability leave.
11. What are the Employee's Rights to Reinstatement? Some leaves, like pregnancy disability, require generally that the Company hold the employee's position open for the length of the leave.
12. May You Require and Have You Required That the Employee Provide a Release to Return to Work? Employees who take leave of absence for their own serious health condition or disability should produce a doctor's note stating that they are able to return to work without the risk of harm to themselves or others. They should not be allowed to return until they produce such a release.
13. Have You Provided the Employee with Notice of the Type of Leave That Has Been Granted and the Conditions? As with all conversations in the workplace, we recommend clear and shared expectations. Notify the employee in writing if the leave has been granted, the conditions of the leave, the effect on benefits and seniority, any reinstatement rights and the date for return to work.
14. Have You Calendared When the Leave Will End and the Consequences of a Failure to Return? We often hear stories of employees who continue on lengthy leaves because the Company fails to respond to the end of the approved leave. Be clear on the length you must grant by law or policy, and make sure you are following up with the employee on or about the return date. You can and should have a policy that states that employees who fail to return on their scheduled return date are considered to have resigned voluntarily.
15. Before You Terminate an Employee Who Has Exhausted a Medical Leave, Have You Considered Reasonable Accommodation? If an employee has taken all the time allotted by law or your policies for medical leave, you may still need to consider whether the employee is disabled and entitled to additional time off as a "reasonable accommodation."
