When an employee requires a leave of absence, HR leaders must make sure they are complying with a myriad of overlapping regulations, both federal and state.
Steffi Harges details the complexities that HR leaders need to successfully navigate. Harges is CHRO at Guardian HR, an HR consultant and employment law firm based in Woodland Hills, California.
With more than two decades of experience in human resources and employment law, Harges frequently conducts webinars and training sessions and provides mentorship to budding HR professionals. Here are her insights.
What is the most complicating factor when dealing with a leave of absence situation with an employee?
The most complicated factor is navigating the complex web of overlapping leave laws, including the Family Medical Leave Act, the Americans with Disabilities Act, state-specific leave statutes and company policies. Each has distinct eligibility criteria, timelines and documentation requirements.
Employers must also be mindful of their obligations beyond statutory leave, such as providing reasonable accommodations under the ADA. Employees do not need to ask for a specific type of leave. It’s the responsibility of the employer to classify which type of leave applies.
We’ve built an HR FMLA checklist for businesses highlighting the importance of timely and accurate documentation, including issuing required notices and tracking certification deadlines. A missed step can lead to compliance failures or legal exposure. The administrative burden of managing these timelines, especially across multiple jurisdictions, makes this one of the most challenging aspects of HR compliance.
How do you deal with an employee out on leave where there has been little communication between the employer and employee?
Limited communication during a leave of absence can create uncertainty and compliance risks. The best approach is to establish clear expectations upfront, ideally before the leave begins, regarding how and when updates should be provided.
There needs to be structured follow-up. Employers should send reminders for medical certification deadlines, document all outreach efforts and avoid assumptions about the employee’s status or intent to return.
If the leave is related to a disability, employers must also engage in the “interactive process” under the ADA, which means employees should keep the lines of communication open and document all steps in the process. Consistent, respectful communication, paired with thorough documentation, helps protect both the employee’s rights and the employer’s legal standing.
What are some of the challenges surrounding employee reinstatement or termination following a leave of absence?
Reinstatement and termination decisions post-leave are fraught with legal and operational challenges. Employers must confirm the employee’s fitness for duty and ability to return to their original or an equivalent position. They should plan for accommodations if the employee returns with restrictions. Employers must also avoid premature termination, especially if the leave is protected under FMLA or ADA.
It’s important to track benefits, create a plan for return-to-work and mutually communicate about the employee’s intentions. Employers should not make assumptions or rush decisions. Companies should not have blanket rules about reinstatement, based on the number of weeks or months an employee is gone. Each leave scenario needs to be fully evaluated on a case-by-case basis. Instead, HR decision makers should review all certifications to ensure compliance with reinstatement rights.
How do employers avoid discrimination issues when managing a leave of absence?
To avoid claims of discrimination, employers must ensure consistency, transparency and documentation throughout the leave process. The process must be objective. The leave process should be standardized and outlined in an employee handbook, which helps reduce the risk of bias or disparate treatment.
Leave policies must be applied uniformly across all employees, regardless of gender or condition. Managers and HR shouldn’t make assumptions about an employee’s capabilities or commitment to their position.
By following the “interactive process” required under the ADA, employers can demonstrate fairness and mitigate the risk of discrimination claims if a termination occurs.
