Taking Employee Leave from Work? Here’s What You Need to Know

There are many types of employee leave, whether required by law or not. But all are seen as an important attraction and retention tool for employers.

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parental leave as a type of employee leave- new parents with child

When employees have pressing issues in their personal lives, a break from work may be the only solution. There are many types of employee leave, some mandated by law, others offered as a company benefit.  But all are seen as an important attraction and retention tool for employers.

Managing employee leave requires a basic understanding of laws involved, and, often a good amount of paperwork. Determining what kind of records you are required to keep, are wise to keep, or are keeping for your own purposes, varies depending on the leave requested.

What are paid and unpaid employee leave?

Most leaves of absence in the US are unpaid. The cost to pay employees for time away from work, particularly for small to medium-sized business, makes it challenging to offer employees a salary when they’re not on the job. But some businesses offer limited paid leave, depending on the situation and circumstance. For leaves mandated by law, few require the employer to pay staff wages.

What’s covered under the FMLA?

The most common leave of absence is regulated under the Family and Medical Leave Act. FMLA requires businesses with 50 or more employees to allow staff up to 12 weeks of leave per 12 month period in the event of a serious medical condition for themselves or a family member; and/or a 12 week employee leave allowance in the event of a birth of a child or placement of a child in the employee’s adoptive care. For members of the military services, the leave is extended to 26 weeks per year in the event of their own serious medical condition (illness or injury). Generally, employees must have completed 1,250 hours of work during the last 12 months to be eligible for employee leave under the statute, but some exceptions apply.

FMLA does not start on January 1st and end on December 31st. It starts on the first day of the requested leave and continues for a 12 month period after it begins. So if an employee requests leave on June 1st, their leave entitlement period ends on June 1st of the following year. Employees can take the leave in a straight 12 week period, or break it up into pieces – days, hours, or weeks off sporadic time off to meet their needs. To date, no state or federal regulations require employees to be paid during their time off, but most employers allow staff to use accumulated sick, personal or vacation time during the leave.

How do employees request FMLA leave?

Employees submit an Employee Leave Request Form, samples of which can be found on the Department of Labor’s Wage and Hour Division website. The form requires a certified health provider attests to the medical condition of the employee or relative and can outline an estimate of the duration of the leave, if possible. The form should be submitted in advance, reviewed by the employer, and approved if appropriate.

In cases in which there is an unexpected illness or injury, advanced notice will not be possible. In these instances, employers should allow a reasonable amount of time for the employee to make a submission.

Do I need to keep employee leave records?

Employers should keep a separate employee file with all the required paperwork for the leave, and keep track of the hours and days which are taken. If the leave exceeds 12 weeks and the employee continues to have a significant medical condition, employers should not immediately consider terminating the employee: they may be entitled to continued leave because of a workplace injury with coverage under state Workers’ Compensation rules or as an accommodation under the Americans with Disabilities Act. It’s wise to discuss any excess leave with counsel.

Does FMLA cover the care of a family member who isn’t ill?

Often employees are called upon to care for a family member. Depending on the needs of the family member, the leave may be eligible under the FMLA. For duties that simply require an employee to care for someone who is not ill, there are no federal or state laws that require employers to provide caregiver leave – paid or unpaid. But it may be an important benefit in the war on attracting and retaining employees. Temporarily allowing a valued employee to help care for a family member, long-term flexible arrangements may be worthwhile. They may also want to look into an FSA for dependent care.

Is Bereavement Leave required by law?

Bereavement leave is a benefit that some employers provide to staff in the event of the death of a family member. Only one state– Oregon– requires employers with 25 or more staff members to provide bereavement leave to employees. Depending on the relationship to the deceased, one to three days are typically provided as paid time off, but there is no law (even in Oregon) requiring the employee be paid.

It’s a best practice to have a Bereavement Policy in place that outlines how much time will be provided based on the familial relationship and whether or not the time off will be paid or unpaid. Most companies provide more days off in the event of the death of an immediate family member: spouse, parent or child, than the death of an extended family member. Employees may be asked to verify the event by providing documentation.

Do employers have to pay for employees on jury duty?

Occasionally employees are called upon to serve on a jury. In most cases their service is short-term; sometimes it’s only a single day, while complicated cases can go on for weeks or months. There is no federal requirement to provide paid time off for jury duty, but terminating an employee for service could be a violation of the laws in your state.

Jury duty is typically unpaid leave, but in 8 states– Alabama, Colorado, Connecticut, Massachusetts, Nebraska, New York, and Tennessee– employers are required to pay staff for the time used to serve. Employers are allowed to verify that staff members have served, requesting a certificate of attendance from the Court.

What is a work sabbatical?

A sabbatical is time taken off of work to pursue growth or development, typically professional development. This type of time off may be short-term: a few weeks or months to attend classes, for example. Some sabbaticals, like those doing research, can last a year or more. There are no laws governing sabbaticals, so granting them is at the discretion of employers. Employees should provide written requests for sabbaticals well in advance of the time needed, and provide supporting documentation about the nature of the employee leave, how it will benefit their personal growth, and what impact it may have on the company.

Some businesses allow either paid or unpaid sabbaticals, but restrictions may apply. Tenure may be the first threshold, requiring a time minimum of work before a request is considered. Another may be how the request benefits the company – by upskilling the worker, for example. Some allow employees to take time for personal reasons. A best practice is to have a policy in place before a request is made.

How do you take a leave of absence from work?

As with most employee-employer relations, communication is key. For leaves that are mandated by law, the discussion will revolve around gathering the necessary paperwork and maintaining the required records. For other requests, there may be a need to balance the employee’s need against those of the company. The first step is to discuss what the employee wants and needs, the impact on the company, and how/if it can work out.

How long can you take a leave of absence from work?

For many small to medium size businesses, the prospect of an employee leave of absence is daunting: whether paid or unpaid, the need to cover that employee’s workload can be a challenge. The amount of time allowed to the employee will depend on the situation – some leave requests have regulatory requirements, others do not. Each company must determine how to balance the leave request with their own business interests.

Paid versus Unpaid: why is one offered rather than another?

Providing leave time off is an important consideration for business. Work-life balance is critical to employee wellness and therefore to productivity and retention. Whether a business can afford to provide employee leave with or without pay will depend on the circumstances of the leave, the pressure on the business and a host of other factors.

Whatever type of leave is requested, employers will need to have (or develop) a policy to ensure any time they grant or deny an employee leave request, it is consistent throughout the company. Granting leave to one employee but not another could be discriminatory; consistency and fairness are paramount.

Unpaid and paid leave can be a valuable engagement and retention tool. While employee leave may involve cost and disruption in the short term, consider the longer view: granting a few weeks or months today could mean keeping that valuable employee for years to come.

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