Managing Employee Leave

A variety of considerations are necessary for supervisors, HR personnel, and employees when preparing for or managing employee work leave. In general, policies and practices should be standard for all employees, regardless of the reason for leave.  However, additional considerations or preparation may be needed when the leave is disability-related.

Managing an Employee’s Request for Leave

When leave is required, employees often inform their direct supervisors first. As a best practice, supervisors should be advised to refer employees requesting leave to the person or office that handles human resource matters for the organization.  

Before granting leave, HR professionals and/or supervisors need to determine an employee’s eligibility for leave, based on applicable laws and organizational policies (e.g., the company’s sick leave policy). When multiple leave laws may apply, employers should examine each statute separately, but consider the possibility that two or more could overlap.

For example, a serious medical condition in which the Family and Medical Leave Act (FMLA) applies may also meet the definition of a disability, thereby qualifying the employee for leave protection under the Americans with Disabilities Amendments Act (ADAAA). (For more information on medical certification of serious health conditions under the FMLA, see Fact Sheet 28G.) If the serious medical condition was a result of workplace injury, it may also involve workers’ compensation.

For non-FMLA covered leave requests that are made under the ADA/ADAAA, HR professionals and/or supervisors need to:

• Identify the reason for which leave is requested and explore with the employee whether alternative options or reasonable accommodations can be used that would satisfy both the employee’s and organization’s needs (e.g., temporarily working a reduced or part time schedule; light duty; schedule changes and workplace flexibility; telecommuting)

• Request appropriate medical documentation from the employee to help explain and support their need for leave.  Note that some laws limit employers’ direct contact with health care providers, and the types of information that can be requested. For more information on medical inquiries, review the Genetic Information Nondiscrimination Act (GINA)  and the Equal Employment Opportunity Office’s (EEOC) guidance related to medical inquiries under the ADA.

• Provide relevant notices and information to the employee regarding the type of leave to be granted.

 Webinar: The Interplay Between the ADA and FMLA

Types of Leave

Planned leave: Often employers will receive advance notice that an employee will be out on health-related, FMLA, or disability-related leave. Employers should prepare for this as they would for any type of expected employee absence (e.g., parental leave or vacation leave).

Sudden leave: Sometimes an employee may have to go on leave suddenly. This type of leave can be due to unexpected circumstances, a worsening of an existing condition, or development of a new condition.

Intermittent leave: Employees may sometimes request intermittent or partial leave, in which case they may not be completely absent from the workplace (e.g., a request to work reduced hours, or take time away from the office on a regular basis to attend treatment or appointments).

In each of these cases, the supervisor and HR representative must work together to process the leave request, ensure compliance with federal and/or state laws, and to manage the workflow in the employee’s absence.   

Managing the Workload of Employee on Leave

When possible, a supervisor should work with an employee to strategize coverage of his or her work while they are out of the workplace. This strategy can include:

• Identifying critical tasks and essential functions
• Identifying staff with related expertise
• Reallocating key tasks to other staff
• Hiring a temporary employee
• Identifying appropriate communications processes

In the case of ADA covered intermittent leave, it may also include:

• Identifying tasks the employee might still do while taking intermittent leave and tasks that must be shifted to other employees.
• Determining whether an employee may work some hours from home or from a remote site.

Under the FMLA, an eligible employee is entitled to 12 weeks of FMLA leave in any 12-month period for a qualifying serious health condition.  If the need for leave extends beyond the employee’s available FMLA entitlement, an employee with a disability may request additional unpaid leave as a reasonable accommodation under the ADAAA. Employers will need to determine whether this leave request is reasonable or creates an undue hardship for the business.

A claim of undue hardship should be based on an individualized assessment of the current situation, and not on generalized conclusions about how the leave may impact staff resources or morale. It is important to try to balance support of the employee on leave with support of other employees in the workplace, to ensure that staff morale and productivity remain high for all employees.

Communicating with an Employee on Leave

Employers and supervisors should consult with HR about whether they are allowed to communicate with an employee on leave about his or her status or prognosis for return. Typically, employers may communicate with their employee about whether they are on-track to return as it gets close to the originally identified return date, but employers should verify this process with HR before contacting the employee.

In general, employers are not expected to grant indefinite leave while waiting for an employee’s uncertain recovery. It is appropriate to ask the employee for an estimated return-to-work date, but absolute certainty for that date is not required. Employees should be given reasonable opportunity to consult with their health care provider to identify and/or amend their return date. 

Managing an Employee’s Return to Work

Reinstatement

Leave laws grant employees different reinstatement rights, thereby reinforcing the importance of employers clearly identifying the type (or types) of leave an employee is taking and informing the employee about his or her rights and responsibilities under the applicable statute(s). Different reinstatement guidelines include:

Americans with Disabilities Amendments Act: Employees who were granted a leave as a reasonable accommodation under the ADA should be reinstated to the same position they previously had, if they can perform the essential functions with or without an accommodation.

Family and Medical Leave Act (FMLA): Employees are entitled to the same or an equivalent position upon return.  An equivalent position under the FMLA is one that is virtually identical in terms of pay, benefits, and working conditions.

Uniformed Services Employment and Reemployment Rights Act (USERRA): Employees must be reinstated into the position they would have had (including promotion) had they not been on leave for military service.  ADAAA obligations, including reasonable accommodation rights, may apply if the returning employee was injured and acquired a qualified disability.  The period of time an employee is absent from work due to USERRA-covered service must also be counted in determining whether the employee meets the FMLA eligibility requirements.

Workers’ Compensation: Most state workers’ compensation laws do not provide reinstatement rights to employees returning from a work-related injury or illness.

Accommodations and Restricted Duty

Several factors may arise as an employee returns to work after leave. Employees may:

• Need an accommodation to perform the essential functions of their job.
• Be placed on restricted work duty for a period of time, by their health care provider.
• Require a modification of their work responsibilities.

When an accommodation is needed, employers are required to engage in the interactive process with the employee to review options. Employers may consult with a third party, such as health care professionals or rehabilitation service providers, when appropriate. It is critical that employers provide these professionals as much information as possible about job requirements to allow them to make the most appropriate recommendations.

Quick Tips for Managing Employee Leave

• In general, responses to disability-related leave requests should be consistent with responses to other types of leave requests.
• Employers should avoid establishing “fixed-leave” or “no fault leave” policies. These policies may violate the ADAAA if they fail to allow for reasonable accommodation requests to be considered on a case-by-case basis.
• Employers should comply with applicable state and federal leave laws and regulations and conform to the one(s) that offer the employee the greatest protection.
• An employee with a disability may request additional leave once his or her FMLA entitlement is exhausted as a reasonable accommodation under the ADAAA. Employers will need to engage in the interactive process when considering this request.
• Additional considerations may be appropriate when leave is intermittent, including the potential for remote work or flexible scheduling.
• Employers should always balance support for the employee on leave and ensure that other staff feel supported and are able to remain productive in their coworker’s absence.
• Employers should work with employees to strategize return to work to ensure a smooth reintegration, and the maximum potential for productivity and success.