Having recently taught my four-part webcast series on “Advanced Time Off and Leave of Absence Challenges,” I was reminded of the complexities facing employers when they administer leaves and employees when they take them. In addition to the myriad California and federal laws at play, no two leaves are the same and on top of that, there are often fraught circumstances involved when employees or their family members are facing serious health issues.
In order to keep this article to a manageable length, here are my Top 5 practical tips (as of today’s date), in no particular order:
1. Be Transparent About LOA Policies and Procedures
Requesting a leave of absence should not be a mystery. Some employers seem to believe that if employees know about leaves, then everyone will take extended time off for no good reason. Although there are employees out there who take leaves for questionable reasons, employers are wise to implement clear and straightforward policies and procedures.
Employees should understand how to request a leave, what information is required in order to be eligible and what is required when returning from leave. If employees know where to find this information, HR will spend less time fielding calls on these basic issues.
Leave of Absence policies are most commonly found in Employee Handbooks. This is effective for providing the basic information about eligibility, lengths of leaves, and the impact on compensation and benefits. Having a separate Leave of Absence Guidelines will allow for more details to be provided, such as, specific HR contact information, checklists, as well as a description of what sorts of check-ins are required during the leave, among other things.
When employees request or when their time off may qualify for a leave, consider providing a LOA packet of information as a matter of course. The specific packet (which may be entirely electronic) would need to be customized for each employer but would typically include the LOA Guidelines or policy, a Request for Leave form, a health care certification form and other information about compensation and benefits. See also #5 below.
2. Educate Supervisors and Managers On a Regular Basis
Supervisors and managers do not need to know chapter and verse of the Family Medical Leave Act (FMLA) regulations or the interplay between the California Family Rights Act (CFRA), the FMLA and the Pregnancy Disability Act under California law. What they do need is a basic understanding that leave of absence and other time off laws provide legal entitlements to eligible employees. They need to understand that they must avoid making comments or taking actions that prohibit or discourage employees from exercising these rights. For example, telling an employee it is not a convenient time to be pregnant or to have an ailing parent who needs care.
Even though this might be the epitome of common sense, supervisors also need to understand that they should never communicate directly with an employee’s health care provider. Employees sometimes tell their supervisors to call their doctor directly (which usually arises when a supervisor is skeptical of the employee’s medical issues). Once the supervisor has talked to the employee’s doctor, it’s too late to give advice. Thus, the need for training.
Supervisors should also understand why jobs are kept open during leaves, how to handle performance and compensation reviews following an employees’ leave as well as retaliation prevention.
3. Provide Supervisors with Guidelines on Employee Inquiries and Doctor’s Notes
Supervisors should also have clear guidelines on what to do when employees call in sick. It is usually helpful to inform supervisors to contact Human Resources when employees have called in sick more than three consecutive days. Why three days? It is possible for employees (or their family members) to have a “serious health condition” under the FMLA and CFRA when they are unable to work for three days, so long as they meet other eligibility criteria regarding being under a doctor’s care, among other things.
Supervisors are sometimes tempted to ask employees to provide doctor’s notes for each absence. What could be wrong with that? Wouldn’t it show that the employee is being truthful about their absence? This is a larger subject than a few sentences here but the short answer is that this would likely violate the FMLA/CFRA because there are specific provisions regarding the frequency in which medical certifications can be obtained. Similarly, various paid sick leave laws, including the California Paid Sick Leave Law, provide restrictions on when medical certifications are appropriate.
4. Guard Against Retaliation when Employees Return from Leave
In many cases, employers have done everything correct in administering an employee’s leave of absence. All of the forms were completed, the leave was designated and the employee returned to her original job. What could go wrong?
Let’s say Sally’s leave coincided with the busiest time for the department, the department didn’t hire a replacement so everyone had to take on extra work, and Sally never told anyone that she had any medical issues so everyone was suspicious when she went out. When Sally returns from leave, she could very well be walking into a hornet’s nest of resentment by her co-workers and even her supervisor.
This scenario could give rise to a retaliatory harassment or hostile environment legal claim. As such, supervisors need to be coached about providing a smooth re-entry, which may require hands-on assistance from HR.
Another common scenario that has led to countless lawsuits for retaliation goes likes this. Robert’s job performance declined over a short period, causing him to be placed on a 60-day performance improvement plan (PIP). On day 55, Robert requested and was granted a Medical Leave under FMLA for 12 weeks. Five days after Robert returned from his leave, he was terminated for failing to meet the terms of his PIP.
Terminating employees shortly after their return from a legally sanctioned leave of absence can lead to a retaliation claim, which an employer will need to defend by establishing objective evidence to support the rationale for termination. If the PIP was merely a set-up for the employee to fail in the first place, the employer would be wise to re-evaluate the situation and look at re-vamping the PIP. In many instances, employees returning from medical leaves will require a bit of time before they are fully up to speed (think about those first few days back after a two-week vacation and how productive we are). Providing an extension of a PIP or a grace period before the PIP goes back into effect can be good and reasonable actions for an employer to take. A measured and reasonable approach towards a returning employee with a preceding performance issue can go a long way towards avoiding a retaliation claim — and defending one.
5. Customize LOA Paperwork and (Of Course) Ensure Compliance
Depending on an employer’s size and its employees’ work locations, a plethora of different leaves of absence are required to be provided by law and some employers have additional leaves unique to them (e.g., personal leaves). Having a Request for Leave of Absence form is a useful tool to consistently document when the employee expects to be out, the reason for their leave and their contact information. The latter may be the most important piece of information since employees generally won’t have access to their company email.
FMLA requires employers to provide two written notices to employees. Within five business days of an employee’s request for FMLA leave, employers must notify the employee as to whether he or she meets the eligibility criteria for taking an FMLA leave. The Department of Labor has provided a form that may be used: https://www.dol.gov/whd/forms/wh-381.pdf. Within five business days from receiving sufficient information (namely, the health care provider certification) to determine whether the employee’s reason for leave qualifies, the employer must notify the employee as to whether the leave is granted (or denied). Here is the link to the DOL’s Designation Notice form: https://www.dol.gov/whd/forms/wh-382.pdf.
CFRA only requires one notice to the employee. Employers must inform employees as to whether their leave has been approved within five business days, presumably from the date that the employer has sufficient information to make this determination.
Although it is helpful that the DOL has provided forms for employers to use, the Eligibility and Designation notices are specific to FMLA. If an employee’s leave is also covered by CFRA or is for a non-FMLA reason, an additional notice will be needed.
Combining these various notices into one form, which is customized to reflect the employer’s particular policies, is well worth the time and effort.
Employers further need to ensure that the health care provider certification forms being used are compliant with the state law of the employee’s location. For example, the updated certification forms published by the DOL do not comply with California’s medical privacy laws.
Whatever forms employers decide to use, make sure the information is clear and legally compliant.
For more information on employment law compliance matters, please contact me at topliff@joblaw.com.
