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FREQUENTLY ASKED QUESTIONS ON LEAVE OF ABSENCE

4/4/2008 - Recently, Sandy had the privilege of working with the Lorman educational company on a presentation entitled “Leaves of Absence – From the Manager’s Seat.” As a result of that presentation, here are 11 FAQ’s about this most critical element of Human Resources Management. If you have a comment about this list, or would like to add to it, or if you have an interesting illustration or question, we would love to hear from you, at sandy@seay.us.

Important Management Note – Leaves of absence are like many employment decisions in that the circumstances surrounding each one are unique and often require close attention, tight discretion and individual judgment. Sometimes, certain state requirements apply and Workers’ Compensation and FMLA are particularly subtle and thorny issues with several layers of consideration. In addition, we must always keep in mind the “reasonable accommodation” provision of the ADA regulations, which may require different solutions than those below. Therefore, it’s always a good idea to check with your Seay Management consultant, prior to making any leave decision, to make sure that your best interests are protected.

SMC’s FAQ’s About LOA

1. How does FMLA work with employees who are absent due to Workers’ Compensation? Answer – If an employee is eligible for FMLA, Workers Compensation will run concurrent with FMLA in almost every case. There is a sense in which you can say that Workers’ Compensation leave is, by definition, FMLA. So, if an employee is absent from work due to Workers’ Compensation, and if the employee is eligible for FMLA, the normal course of action would be to place the employee on FMLA.

2. What do we do if we have an employee who is released by his or her physician to return to work, but will not return? In other words, the physician says the employee is able to work, but the employee says he or she is unable to work. Answer – In today’s world, the employer should not make any kind of medical decision, even if this appears to be a management decision, such as when an employee returns to work. Instead, we should depend on the doctor’s written statement. If the doctor releases an employee to return to work, this means the employee must return to work, even if he or she doesn’t want to, or “thinks” he or she is still disabled. Employees who do not return to work following a doctor’s release have abandoned their jobs.

3. The employee is released from the physician for “light duty.” What is the employer’s requirement? Answer – In most states, there is no requirement for an employee to be placed on light duty, although it’s usually a good idea, if possible. However, it’s not always a good idea to create a job for an employee, just for light duty purposes.

4. An employee not on FMLA but on leave due to Workers’ Compensation is released to return to work, but there is no position for him or her, because it has been filled. What next? Answer -- When an employee returns to work after being absent due to Workers’ Compensation, it’s always best to return the employee to his or old former position, if possible. However, if the former job is no longer available, you should offer the employee a different job or, as a last resort, inform the employee that there is no job available.

5. What kind of leave should an employer offer, if the employee needing a leave is not covered by FMLA? Answer – Employers need to have an administrative classification for employees who are on leave but not FMLA. In this case, we recommend a Regular Leave of Absence for up to 90 days. This is an unpaid leave with no job guarantee when the leave expires, and the employee must pay the full insurance premium, if insurance is to remain in effect during the leave.

6. An employee returns from Military Leave. How soon must the employer return the employee to work, and in what position? Answer -- The best way to resolve this issue is to return the employee to work immediately in the same position he or she left.

7. (I know we don’t have a military draft right now, but nevertheless. . .) An employee enlists in the service rather than being drafted. Must I grant Military Leave? Answer – Military Leave requirements apply, regardless of whether the employee is drafted or enlists.

8. Under what conditions does an employee receive pay while on leave? (Seay Management Principle – you can get into just as much trouble being too good to an employee as you can otherwise.) Answer – An employee would be paid while on leave if he or she has paid benefit time available, such as PTO or sick pay, or if a Long or Short Term Disability policy is in effect. We do not recommend arbitrary payment to some employees and not others, as this creates enormous potential exposure.

9. What about an employee who is just absent for unknown reasons, or an employee that we “know” will return soon? (Seay Management Principle -- Employees must either be actively at work or on leave. There is no Limbo Leave of Absence.) Answer – In the Inferno, the Italian poet Dante placed some souls in a place called Limbo, which was an “in between” kind of place – not quite in but not quite out. In employment matters, however, we need to be more definitive about employees on leave of absence and should not leave an employee in Leave of Absence Limbo. To be proper, an employee is either (a) actively at work or (b) on leave of absence – there is no in-between. Sometimes, what was originally intended to be a short absence turns into a long one; therefore, an employee absent for medical reasons for 2 days should be placed on FMLA, if eligible, or Regular Leave otherwise.

10. What about an employee who has been on leave a long time with no end in sight? (Seay Management Principle – Leaves are not interminable and must have an end at some point.) Answer – You should have a beginning and an ending date for every leave of absence and, when the leave expires, you should apply the provisions of your leave policy. For example, in some cases, employees who do not return from leave within the appointed time lose their employment status. As mentioned earlier, we must always keep the “reasonable accommodation” standard of ADA in mind.

11. What about an employee who does not qualify for FMLA but is pregnant. Should you have a “Pregnancy Leave” or “Maternity Leave?” (Seay Management Principle – Pregnancy should be treated like any other illness or disability.) Answer – From a policy standpoint, EEOC regulations require that employers treat pregnancy and related conditions as we would any other illness or disability. Thus, we do not recommend a separate policy entitled “Maternity Leave” or “Pregnancy Leave,” as this suggests that, in some way, pregnancy is viewed differently. Pregnancy is a qualifying event under FMLA, of course, and pregnancy should also be included in your Regular Leave of Absence policy. Our suggested language is that the Regular Leave policy should cover “. . . illness, disability, pregnancy and related conditions.” In this way, there is no question about pregnancy being treated differently.



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