Introduction to Small Businesses Managing Leaves of Absence – Part I
Managing employee absences can be tricky for small businesses. Each team member is critical to the operations of a small business. For small businesses especially, the thought of any team member’s absence can seem stressful and overwhelming to your business. A survey by AbsenceSoft of HR professionals, confirmed that employee leave requests have increased year over year. The reality is that small business owners must be ready to tackle this challenge.
Small businesses are typically exempt from the Family Medical Leave Act (FMLA), which may seem like a relief, but small businesses can still be liable for discrimination claims if employee leaves of absence (LOAs) are not managed fairly. The good news? You can create a strategy to manage LOAs fairly and effectively, protecting both your business and your team. We’ll help you with this challenge in this two-part blog series.
Common Leave Definitions
First, let’s discuss some common definitions before we discuss managing LOAs.
Leave of Absence: A short- or long-term period of time when it is necessary for an employee to be off from work. Also referred to as “leave”, “personal time off” or “LOA.”
Reasonable Accommodation: An adjustment an employer provides to an employee allowing them the opportunity to successfully perform the essential functions of their position.
Disability: For purposes of nondiscrimination laws (e.g. the Americans with Disabilities Act, Section 503 of the Rehabilitation Act of 1973 and Section 188 of the Workforce Investment Act), a person with a disability is generally defined as someone who: (1) has a physical or mental impairment that substantially limits one or more "major life activities," (2) has a record of such an impairment, or (3) is regarded as having such an impairment.
Maximum medical improvement (MMI): The point at when the covered illness is stabilized and is unlikely to improve with or without additional medical treatment.
7 Strategies for Managing Leaves of Absence
1. Understand Your Legal Obligations
The FMLA entitles employees (who have worked at least 1,250 hours within a year for an employer) to take unpaid, job-protected leave for family or medical reasons with health insurance coverage for up to twelve weeks in a one-year period. Employers subject to the FMLA must provide employees with the same or similar job after returning from a FMLA-approved LOA. FMLA applies to businesses with 50 or more employees within a 75-mile radius, which doesn’t apply to many small businesses.
While FMLA may not apply to your business, you could still be subject to other federal and state laws. Some of the most relevant laws include:
Americans with Disabilities Act (ADA): If an employee has a disability, employers with at least 15 employees are required to provide reasonable accommodations, including medical leave.
Pregnant Workers Fairness Act (PWFA): Requires accommodations, including leave, for employees affected by pregnancy, childbirth, or related medical conditions for employers with at least 15 employees.
State Leave Laws: Some states have their own family and medical leave laws, even for small businesses. As of this writing, there are 43 state laws governing parental, medical, and caregiver leave in the U.S. Be sure to check your state’s requirements.
Workers Compensation: States enforce workers’ compensation LOAs for employees who get injured on the job and need to take time off. The amount of time an employee can be on workers’ compensation leave and reach maximum medical improvement (MMI) varies by state.
Action Step: Even if a small business does not meet the legal employee threshold, proactively implementing fair and consistent procedures and processes is key. A consultant like CPR can help you stay informed about both federal and state laws that may impact your responsibilities when managing leave requests.
2. Create a Clear Leave Policy
Even without FMLA, having a formal leave policy ensures consistency and reduces misunderstandings. A policy helps ensure consistency in managing LOAs. Your policy should outline:
Types of leave offered such as medical leave, personal leave, military leave, jury duty, or bereavement leave.
How much leave employees are eligible for and when they are eligible for the leave.
If the leave is paid or unpaid.
Required documentation to certify the leave.
The process for requesting leave.
How benefits (e.g., health insurance) are handled during the leave.
The return-to work procedure.
Action Step: Work with an HR consultant, like CPR, to draft a comprehensive leave policy that aligns with your business needs and complies with applicable laws.
3. Show Compassion and Flexibility
Managing an LOA is not just about policies and procedures—it’s also about creating a supportive workplace culture. Employees who feel valued and supported are more likely to stay loyal and productive and less likely to take legal action against your business. Being selective or “choosy” on who you decide to show compassion and flexibility towards places you in legal trouble and can lead to a discrimination lawsuit. For example, a poor performing employee should be afforded the exact same options as a top performing employee to take leave. Compassion should not be dependent upon someone’s performance or any other protected class such as race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability, and genetic information (including family medical history). Certain states also have their own protected classes of people, so be sure to consult with CPR for help.
Action Step: Be flexible, but also consistent, and consider creative solutions, like part-time or remote work options, to help employees balance their personal and professional responsibilities.
4. Communicate Transparently
Maintain open dialogue with the employee throughout the process. When an employee requests leave, have a one-on-one conversation to understand their needs and explain your policy.
Keep in mind that you should keep all medical information confidential. Medical information is protected by the Health Insurance Portability and Accountability Act (HIPAA), so ensure you protect employee privacy regarding their LOA. Information about an employee’s need for an LOA should be limited to only those on a need-to-know basis such as the employee’s manager. All other team members are allowed to only know that the employee is on an LOA. If asked why, it is appropriate to share that that information is confidential and cannot be shared, nor should they ask the employee on LOA.
Action Steps:
Be empathetic while setting clear expectations about the process, what they are entitled to, and their return to work.
Document all communications with the employee.
Up Next
In part two, we will continue our discussion on strategies for managing LOAs, red flags to look out for and a sample LOA process.
Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.
