50 Shades of Leave

by Admin on April 19, 2013

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You might think that not showing up to work is grounds to dismiss an employee, but it turns out no situation is black-and-white in today’s world. Leave is a “gray area” that bank managers must learn to navigate carefully, not a simple decision that can be made the morning an employee doesn’t walk in the door.

Business owners and employee supervisors need to be savvy about federal, state and local leave laws that protect an employee’s leave of absence or risk serious consequences.  Take for example the Family Medical Leave Act (FMLA) which requires companies with over 50 employees to retain an employee’s position and benefits for 12 weeks for their own medical issue or that of a family member.  Another consideration is the Americans with Disabilities Act (ADA) and the most recent ADA Amendments Act (ADAA).  Besides the federal laws that were mentioned above, there are several state and local laws that govern time off for employees.  It is very important that you not only follow federal guidelines, but more importantly state and local provisions which can supersede federal requirements.  An example of a state specific leave law is California’s School Activities Leave which requires employers to grant leave to workers to participate in school-related activities involving their children.  As a business owner, it is important to ensure that you are applying all the applicable leave laws that would apply to an employee’s situation correctly or risk inadvertently putting your company at risk by not complying with the leave laws.

How do you know which leave laws apply to your employees?

First, determine the basic federal leave laws that apply to your company depending on the size of your company such as FMLA.   Secondly, determine which states you have employees in, and third determine which local laws apply to your employees.  Finally, you would need to determine, based on an employee’s leave situation how these laws work together in order to provide your employees with the required leave that has been indicated.  In summary, managing leave can be a time consuming and confusing process for many managers.

Recently a bank manager under my consultation notified me of a potential termination due to absenteeism.   They stated that their employee couldn’t come back to work due to a medical issue. The employee had already exhausted their 12 weeks of leave provided under the Family Medical Leave Act.  However, the additional step of engaging in the Americans with Disabilities Act Interactive Process was necessary at this point in time to prevent the potential claim of violating the Americans with Disabilities Act.   Terminating the employee without discovering whether or not the company could have made a reasonable accommodation which would allow the employee to come back to work, would potentially violate the ADA.  In this example, the employee needed to remain on leave of absence until at minimum the ADA Interactive Process had been completed.

A different example includes a bank with less than 50 employees, and as a result, this bank was not subject to providing the required 12 weeks of leave under the FMLA which is only required by those employers with 50 or more employees.   However, the bank decided to grant a leave of absence to an employee who requested a leave of absence within the first 30 days of employment to care for a disabled child.  At the same time, another employee at the same bank who also often missed work because of a sick child was disciplined for excessive absenteeism. The second employee filed a claim of discrimination and disparate treatment based on age, race and gender when the bank denied her request for LOA.  Although the bank did not legally violate FMLA since they were not subject to this leave law, they did increase their risk of a discrimination claim by treating the two employees differently by granting leave to one employee and not another.  Creating leave policies that are legally compliant and consistently applying them to all employees are key in steering clear of employee claims that could potentially cost the organization thousands of dollars in a settlement.

Navigating these “gray areas” when it comes to leave can be difficult, but working closely with your Human Resources partner can greatly alleviate these concerns.

About the Author

Annick Miller is the Senior Human Capital Consultant at TriNet

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