Does Your Leave Policy Conform to Regulations? | DCR Workforce Blog

Does Your Leave Policy Conform to Regulations?

WorkersAn employer has to walk a tightrope; doing balancing acts which juggle the business objectives and performance concerns with an equal concern for employees’ personal needs and requirements. It is hard on an employer and the team at work to have a member absent for long periods, reducing the team’s effectiveness. There is pressure on everyone to deliver that little extra to compensate for the absent worker’s load. One way to assuage these concerns is by enacting clear leave policies specifying limits on unpaid, FMLA, short/long term disability and workers’ compensation leave. Most company policies stipulate that an employee who avails leave in excess of the stipulated limits forfeits the right to return to work.

Strict leave policies may help an employer to better manage staffing requirements, enabling them to plan for staff shortages and gear up their teams for approaching deliverables and deadlines. But, some leave policies could land employers in trouble with the regulatory authorities.

Equal Employment Opportunity Commission (EEOC)

The EEOC targets employers for having inappropriate ‘maximum leave policies’, which do not offer any flexibility. The EEOC’s evaluation of leave policies could end with an employer facing adverse consequences for non-compliance, especially with the Americans with Disability Act (ADA). The EEOC has obtained million dollar settlements over charges of discriminating against the disabled when employers instituted automatic termination policies that failed to provide reasonable accommodation for disabled workers. The length of the maximum leave provides little protection, as companies that specified maximum leave extending to 12 months were also found to be discriminating against disabled workers.

  1. Curtailment of an employee’s eligibility for disability leave through specifying an inflexible limit is considered to violate an employer’s duty of reasonable accommodation. As per ADA, a fixed leave policy – however generous – without a case-based approach is not acceptable to the EEOC.
  2. The non-negotiable terms of a maximum leave policy violate the requirement for keeping open the lines of communication between employers and employees on leave. In cases where there is ambiguity, employers should seek permission to communicate with the employee’s health care providers. This must be done in a manner consistent with the Health Insurance Portability and Accountability Act (HIPAA) patient privacy requirements.
  3. When a complaint is filed, the EEOC will examine the employer’s leave administration process for adherence to ADA-regulated disability benefits and worker’s compensation laws.

To avoid penalties, employers should review and, if necessary, revise their leave policies to eliminate non-compliant maximum leave policies. They must take the trouble to engage with any employee who requires a prolonged leave of absence and handle the leave requirement of every disabled employee with special care. Employers must also document the costs associated with extensive unpaid leaves by way of modifying schedules, payment of overtime, hiring temporary workers etc. Attempts to quantify the loss of productivity and disruption of business operations is also needed to defend against potential discrimination claims.

Laws for the Extended Workforces

Many employers today hire part time or temporary workers to meet seasonal demands or other fluctuations in business operations. These workers do not qualify for all of the benefits that available to permanent hires unless required by Federal or State labor laws or company policy itself. So, it is necessary to see how the laws affect the different segments of one’s extended workforces.

FLSA

  • Federal laws expect employers to treat their part-time workers the same as full time employees, making the tenets of the Fair Labor Standards Act (FLSA) applicable to everyone in respect of minimum wages, overtime pay, recordkeeping and child labor. FSLA does not address leave policies for non-employees.

FMLA

  • Under the Family and Medical Leave Act (FMLA), covered employees are eligible for up to 12 weeks of unpaid family and medical leave. Qualified employees can avail up to 26 weeks of unpaid leave in a single 12-month period to provide care for a military service member or veteran in their family. State laws regarding family and medical leave take precedent if they provide greater leave rights to employees than FMLA. FMLA expects the employers to offer their employees the full benefit of both laws.

No federal law requires employers to provide paid sick leave (over non-job-related illness or injury), but most employers provide it as an important employee benefit to permanent hires. Most employers establish sick leave policies which consider disability income, use of unused sick leave, liability for sick leave as well as possible discrimination liability. Many


Disclaimer:
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.