What employers need to know about employee leave of absence

What is a leave of absence?

Not to be confused with paid time off (PTO) and vacation time, a leave of absence is a way for employees who are experiencing out-of-the-ordinary circumstances to take time off work. Common reasons are childbirth, adoption, caring for an ill family member, serious health conditions or military leave. In cases such as these, employees may be entitled to leave by federal or state law. Employers can also supplement their legal obligations with voluntary leave policies as a recruitment and engagement tool.

An employer’s retention tool: Leave of absence

Even the most dedicated employees can experience circumstances outside of work that affect their performance. These individuals remain assets to the business, but may need time away from their job to deal with personal, medical or family matters. In this way, leaves of absence are a valuable component of any HR management toolkit. They also may be required by law.

Types of leave

There are two types of leaves of absence: mandatory and voluntary.

Mandatory leave

Mandatory leave is governed at the federal level by the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA). Under the FMLA, employees may be eligible for up to 12 workweeks¹ off without pay. At the end of that time, they typically must be restored to their former position or placed in an equivalent role. Note that some states may have different mandatory leave requirements. Employers may also be obligated to provide leave under certain collective bargaining agreements with their employees’ unions.

Voluntary leave

Voluntary leave is an employee perk. As such, it is generally up to the employer’s discretion and typically does not offer the same job protection as the FMLA. Businesses that choose to offer this benefit may want to update their company policies or employee handbooks with specific voluntary leave guidelines, including who does and doesn’t qualify.

Who qualifies for an FMLA leave of absence?

In order to qualify for FMLA leave, individuals have to be employed by a covered employer for at least 12 months (not necessarily consecutive) and work at least 1,250 hours during the 12 months preceding the leave. They must also experience one of the following circumstances:

• Military caregiver leave
• Military qualifying exigency
• Birth of a baby
• Placement of a child for adoption or foster care
• Care for a sick immediate family member
• Serious health conditions

Who is a covered employer?

An FMLA covered employer is a private sector employer that has 50 or more employees within a 75-mile radius for 20 or more workweeks in the current or preceding calendar year. The FMLA also applies, regardless of the number of employees, to all public agencies (federal, state and local governments) and local educational agencies. This includes public school boards and public, as well as private, elementary and secondary schools.

Why grant a voluntary leave of absence?

Although the most common reasons for requesting a leave of absence are protected under the FMLA or other laws, some are not. Employers who fill these gaps in coverage with voluntary leave may be able to improve workforce morale, employer-employee relationships and talent retention rates. They might also see a boost in productivity when employees who were on leave return to work.

Some common voluntary leave request reasons are:

• Pursuing higher education
• Bereavement
• Sabbatical
• Divorce or family upheaval
• Moving

Leaves of absence taken for one of these purposes are typically unpaid and employees may be asked to exhaust their PTO before their request is approved.

Can leaves of absence be extended?

Sometimes, especially during medical situations, employees may ask to extend their leaves of absence. It’s generally up to employers to determine whether or not to grant such extensions once any applicable legal leave entitlements are exhausted. When weighing their decision, they should consult legal counsel to avoid claims that they violated the ADA or any state laws that require businesses to provide reasonable accommodations to employees with physical or mental disabilities. In California, for instance, the Fair Employment and Housing Act (FEHA) considers medical leave to be a type of accommodation.

Best leave of absence practices

The best leave of absence practices balance legal obligations with employee benefits. Employers who succeed in this endeavor often investigate what their jurisdiction requires, as well as what is typical in their particular industry. They also tend to document their leave of absence policies in employee handbooks and ensure they are understood by all supervisors throughout the organization. Measures like these can help limit HR’s workload and reduce stress for all parties involved.

A note on state laws and leaves of absence

Leave of absence eligibility, duration and employer requirements vary by state. Employers should check which laws apply to their business and follow them accordingly.

Frequently asked questions about leave of absence

What is the difference between mandatory and voluntary leaves of absence?

Mandatory leaves of absence are those required by federal, state or local law for employees with qualifying reasons, whereas voluntary leaves are provided at the discretion of the employer.

Who qualifies for a leave of absence?

Leave of absence qualifications vary by jurisdiction and whether the leave is mandatory or voluntary. To qualify for FMLA leave, employees must:

• Be employed by a covered employer for at least 12 months (not necessarily consecutive)
• Work at least 1,250 hours during the 12 months preceding the leave
• Experience one of the following circumstances:
  • Military caregiver leave
  • Military qualifying exigency
  • Birth of a baby
  • Placement of a child for adoption or foster care
  • Care for a sick immediate family member
  • Serious health conditions

How long can leaves of absence last?

Mandatory leaves have specific limits prescribed in the applicable laws, but voluntary leave is up to the discretion of the employer. Under the FMLA, employees who work for a covered employer and meet the qualifying criteria may be eligible for up to 12 workweeks¹ of unpaid, job-protected leave.

Can I fire someone who keeps attempting to extend their leave of absence?

Under certain circumstances, employers may be able to terminate an individual on FMLA leave if the reason for the termination is unrelated to the leave and would have happened even if the leave had not been taken. Legal counsel should be consulted in these cases to minimize risk and ensure all applicable laws are followed.

¹ Up to 26 workweeks of job-protected military caregiver leave during a single 12-month period may be available for an eligible employee to care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered service member.

This guide is intended to be used as a starting point in analyzing leaves of absence and is not a comprehensive resource of requirements. It offers practical information concerning the subject matter and is provided with the understanding that ADP is not rendering legal or tax advice or other professional services.