The Monthly Monitor | Oct. 2023
Introducing our new monthly communication providing you with a deep-dive into HR Insights, Resources, and Forecasts
Don’t Let Leaves of Absence Leave You Absent Minded!
A Guide to Leave of Absence Management & Success
When it comes to managing Leaves of Absence, starting off on the right foot is critical to success.
Tons of businesses nationwide find themselves playing catch-up because something was missed before an employee headed out the door on a long-term absence from work. Those small misses result in a lot of questions that may sound all too familiar…
“What are my legal requirements when someone requests a leave? And how long do they have before I can terminate?”
“An employee went out on leave due to a work-related injury, how long do I have to keep their position and allow them on the company health plan?”
“We had an individual go out on leave for six months now, what are my options?”
Regardless of the triggering event, managing a Leave of Absence is often the same process, just with a slight adjustment to your execution. The who and why a leave is needed will determine what forms and wage replacement options there are.
We must remember that Leave of Absence management is just as important as performance management. This means (when an employee is not actively working) knowing where they are and why they are not present at work.
Proper management involves:
- Knowing what company forms to use when a request is made
- What legal entitlements is the employee eligible for
- How will the individual be paid during their absence and how to manage the reinstatement process
Here are the steps to take to ensure your process is compliant and consistent:
STEP 1 – Determine the “Law of the Land” and Employee Eligibility
(protected vs. non-protected leave)
Special Note: Those residing outside of CA or operating in other states should familiarize themselves with those individual statutes and how they apply against the federal requirements. Additionally, each state may have its own requirements under Worker’s Compensation, and employers should review those standards to ensure they apply the most appropriate practice in the case of any leave that results from a work-related injury.
Special Note: An employee must meet both eligibility requirements under FMLA and or CFRA to be found eligible for the leave entitlement. Additionally, in personal medical events, the employee must provide medical documentation that will dictate the timeline needed which may be less or more than what federally/state required.
When using the term “protected leave,” this language simply means that employers are required to guarantee employment reinstatement and not alter the employee’s “benefit eligibility status” until that entitlement is exhausted. If the employee is ineligible for a protected leave of absence designated under CFRA/FMLA/PDL, defer to your company policy which should outline the company practice of managing a leave request outside what is legally required. In these cases, defer to the work accommodation process to formally review the employee’s request and determine whether the business can accommodate said request without causing undue hardship. The final determination is at the employer’s discretion to include how the request is approved and or reasonably denied, the amount of time offered, and whether position and benefit status reinstatement is or is not guaranteed upon their return.
STEP 2 – How to Manage State Pay & Company Benefits
Depending on the individual situation and payroll history of an employee, they may be eligible for state benefits during their Leave of Absence. The chart below highlights those opportunities and what they offer.
STEP 3 – Complete the Necessary Documentation
(Applicable for both protected and unprotected leaves)
Maintain thorough records of all leave requests, approvals, and related communication. Accurate documentation helps in case of disputes or audits.
There are several administrative checkpoints you must complete steps to ensure the process is documented appropriately:
- Company Leave of Absence Request Form
- Medical Certification (required in all personal medical leaves)
- State/federal insurance benefit notice (e.g., State Disability, Paid Family Leave, or Pregnancy Disability Insurance) that encloses all the necessary directions to file for wage supplemental benefits
- Leave Designation Notice, which acts as a formal notice to the employee to signify their inactive employment status, duration of leave & expected return date, and coordination of benefits
Below is a brief overview of the type of documents that will cycle through a leave and underscore who is responsible for facilitating them.
STEP 4 – Manage the Return-to-Work Process
Prior to an employee’s Leave of Absence, it is best practice to supply the employee with your Return-to-Work company policy, which outlines both the employer and employee(s) responsibilities during this process. Knowing what to expect is always best practice and can eliminate unnecessary confusion or stress when the employee plans to return to work.
- Begin reconnection contact with the employee
- Review company policy and communicate all requirements to return to work
- Secure medical provider duty release in personal medical leave instances
- Confirm whether an accommodation is necessary
- Follow RTW company procedure and update management on the expected return date
Personal (non-medical) Leave: Employee should provide the employer with a return-to-work date (asked for on Request for Leave notice) and coordinate return to work per your policy.
Personal Medical Leave: Prior to the employee’s expected return, it’s best practice for the employee to provide the employer with a work release (doctor’s note), which may release the employee to full duty with no restrictions or may outline temporary/permanent work restrictions. If restrictions are noted, this triggers the ADA Work Accommodation Process.
Leave of Absence management requires a balance between supporting employees and maintaining the organization’s operational needs, all while adhering to legal requirements and company policies.
Effective management can contribute to employee satisfaction, retention, and overall organizational success, and here are some key insights into effective LOA strategies to take in your process:
- Policy Development: Establish clear and comprehensive leave policies that comply with legal regulations and cater to employees’ needs. These policies should outline eligibility criteria, notification procedures, and documentation requirements. Often, we advise letting your policy do the talking, so have the applicable company policy ready when discussing these options with employees. There is no need to reinvent the wheel; simply highlight their requirements and role in the process for easy reference should a question arise during active participation in the process.
- Legal Compliance: Stay updated with federal, state, and local laws pertaining to leaves, like the Family and Medical Leave Act (FMLA), CA Family Rights Act (CFRA), or the Americans with Disabilities Act (ADA). Compliance is essential to avoid legal issues. Knowing what “Law of the Land” you’re dealing with is the first piece to the pie is understanding what legal entitlements and benefits are in play in your process.
- Documentation: Maintain thorough records of all leave requests, approvals, and related communication. Accurate documentation helps in case of disputes or audits.
- Communication: Effective communication with employees is crucial. Ensure that employees understand their rights and responsibilities when requesting leaves, and provide them with a clear point of contact within HR. This is where your letters come into play, which documents your due diligence to maintain contact with the employee when they are not actively in the building.
- Training: Train HR staff and managers on leave policies and procedures to ensure consistent and fair implementation. This can help prevent misunderstandings and disputes – consistency is critical to your process!
- Accommodations: Be prepared to provide reasonable accommodations for employees with disabilities under the ADA, including modified work schedules or job responsibilities if necessary. These become a necessary overlay in a Leave of Absence either prior to the request or when an individual is returning to work with physical limitations. Be sure to review your process and review this with the employee so all are properly informed of the potential adjustments that the individual may need.
- Return-to-Work Plans: Develop a standardized process for employees returning from leave, which may include reintegration plans and discussions about any necessary adjustments (a.k.a. Work Accommodations).
On the flip side, poor management of a leave of absence can have several negative consequences for both employees and employers. Some of the common pitfalls include:
- Decreased Productivity & Employee Stress: When a leave of absence is poorly managed, it can lead to a disruption in workflow and decreased productivity, as other team members may need to take on additional tasks. Employees may experience stress and anxiety if their leave isn’t managed correctly, negatively impacting their well-being and morale. Alternatively, colleagues left to pick up the slack during a leave may become overburdened, leading to dissatisfaction and burnout that can strain team dynamics, causing resentment and conflict among team members.
- Legal and Compliance Issues: Failure to comply with employment laws or company policies related to leaves of absence can result in legal issues and potential liability for the employer.
- Costly Replacements and Additional Expenses: Temporary hires or overtime pay to cover an employee’s responsibilities during a leave can be costly for the employer. One of the most overlooked aspects of a leave is the cost of benefits. Legally, an employer must maintain the current structure of the benefit plan – who is responsible for the premium in a protected leave scenario? Therefore, these responsibilities must be reviewed and discussed with the employee so all are informed of their role in that process. Countless businesses lose hundreds if not thousands of dollars because of this most overlooked piece of the puzzle.
Our Comprehensive Resources and Expert Consultation
If you find your process isn’t at the level you need to effectively manage Leaves of Absence, we offer countless resources, including but not limited to:
- Sample policies
These resources will help you achieve your management tasks while ensuring your due diligence and compliance. If your Leaves of Absence process is leaving you absent-minded and you don’t know where to start, contact our HR Consulting Team, and we can work together to develop a leave process that is effective and easily manageable.
In the meantime, if you want to complement this resource with something more interactive, go visit HR in Half Hour: Managing Leaves of Absences, and HERE are the tools and resources needed to administer and document this process.
New Regulations to Watch Out for Coming Jan. 2024
October can be chock-full of excitement, from ordering that long-awaited pumpkin spice latte to deciding what costume to wear at the annual Halloween Party or decorating your house in oversized spiderwebs and spooktacular characters.
October is also known as “Shocktober” in employment law circles because this is the time of year when new regulations are signed into law that often leave us business folk in shock about what needs to be done to prepare and align business practices to comply with these laws. So, instead of pulling up Netflix and selecting your favorite Fall movie, employers may want to sit down and fill the popcorn bowl from now until October 14 as the CA Governor has until that date to sign or veto these notable regulations, most of which are set to go in effect January 1, 2024:
- Expansion of CA Sick Leave – 5 days or 40 hours (SB-616 Sick days) (Signed and effective Jan. 1, 2024)
- Family Caregiver Discrimination Protection (AB-524 Discrimination: family caregiver status) (VETOED on Oct. 16, 2023)
- Fast Food Worker $20 Minimum Wage (AB-1228 Fast food restaurant industry: Fast Food Council: health, safety, employment, and minimum wage) (Signed and effective Apr. 1, 2024)
- Healthcare Worker Minimum Wage Increases (SB-525 Minimum wages: healthcare workers) (Signed and effective Jun. 1, 2024)
- Mass Layoff WARN Notifications – 75 days from 60 days (AB-1356 Relocations, terminations, and mass layoffs) (VETOED on Oct. 16, 2023)
- Return to Work Notice Obligations; Return from Remote Work (SB-731 Employment discrimination: unlawful practices: work from home: disability) (VETOED on Oct. 16, 2023)
- Workplace Violence Prevention Program (SB-553 Occupational safety: workplace violence: restraining orders and workplace violence prevention plan) (Signed and effective Jul. 1, 2024)
- Reproductive Loss Leave (SB-848 Employment: leave for reproductive loss) (Signed and effective Jan. 1, 2024)
Reminders of laws enacted in 2022 going into effect January 1, 2024:
- Increased Wage Contributions to State Disability Contributions (removal of wage cap) Bill Text – SB-951 Unemployment insurance: contribution rates: disability insurance: paid family leave: weekly benefit amount
- Removal of Marijuana Drug Testing (Bill Text – AB-2188 Discrimination in employment: use of cannabis)
Now, don’t forget that when a regulation becomes a law or amendments are applied, you must review all applicable company policies and procedures (aka your handbook) and make the necessary changes to ensure its alignment with the current regulations and standards.
Remember the goal of your handbook: It’s the first line of defense for employers and outlines employee expectations. Handbooks set forth the company’s rules and procedures and can be utilized to justify business decisions as they relate to workforce management. Employee handbooks should be reviewed annually. Whenever any changes are made, the employer should distribute the changes and get a new acknowledgment signed. Any modification or customization of policies should be carefully reviewed to ensure that the policies comply with applicable laws at all levels.
Our HR in a Half Hour webinar series is back!
Join us on Thursday, November 16th as our HR Business Advisor, Kely Blackburn plans to unpack on the all the new regulations coming down the pipeline January 1, 2024.