Leave of Absence

What is a Leave of absence?

A leave of absence is a period during which workers may be absent from their regular work schedule without endangering their employment status. Leaves of absence are divided into many sections which are sometimes shortened to the single term "leave."

Leave of absence is taken against extraordinary circumstances like serious health conditions, looking after an elderly parent, childbirth, adoption, time off taken as military leave, or family member ailment.

What is Mandatory Leave of Absence?

Mandatory leave of absence is: when your workers request a leave of absence, under the legal obligations, certain circumstances are bound to be given leave against. There are mentioned below scenarios where employers have to legally provide leave to employees in the United States:

• Family Medical Leave Act (FMLA) covered medical conditions against leaves
• Leaves against Americans with Disabilities Act
• Court hearings ordered by Juries or Jury duty
• State leaves declared as public holidays
• Military leave - time off from work

What are the rules governing leave of absence as per the FMLA - Family Medical Leave Act?

An employee can take up to 12 work weeks within 12 months as per FMLA - Family Medical Leave Act, under the below-mentioned conditions:

• Newborn childcare
• Adoption of a child
• Spouse care for health reasons
• Children care due to ailment
• Parents care for illness
• Employee’s serious health condition
• Any condition preventing employees from performing certain jobs
• Any requirement whereby that qualifies that the employee’s spouse, child, or parent is a covered military member on “covered active duty”

This can be up to 26 work weeks of leave in a single 12-month period for caring for a covered servicemember with serious injury or ailment if the eligible employee is a service member’s spouse, child, or parent, or even next of kin (military caregiver leave).

What is Voluntary Leave of Absence?

A voluntary leave of absence is in line with the policies of your employer. Those policies determine whether the leaves would be paid or otherwise. The types of leave that can be considered as Voluntary leave of absence are mentioned below:

• Paid Time Off (PTO)
• Sick Leave
• Maternity Leave
• Paternity Leave
• Bereavement Leave
• Compensatory time off
• Higher Study leave
• Transfer or Moving leave
• Retreat
• Vote casting purpose leave
• Family issues like divorce etc.

What is meant by a covered employer in a leave of absence?

On leave of absence, a covered employer is meant to have 50 or more employees on the job within a 75-mile radius working 20 or more weeks a year. That the year can be current or the preceding one, applies as same. FMLA applies to all public as well as private sector elementary and secondary schools.   

Who grants leave of absence and why leave of absence is to be granted?

Employers grant leave of absence against certain circumstances to their employees. Leave of absence should be given to employees by the employers, some are covered legally as per regulations in practice such as FMLA – Family Medical Leave Act, or ADA - Americans with Disability Act; the rest are either voluntary or other circumstances causing leave of absence.

Employers who give such provisions to employees pave the way to talent retention, high morale of employees, and employee-employer relationship betterment. And, it is said to be when employees come back on the job from a leave of absence, they work with boost and care for the organizational profitability, as per psychographics of the employees cared for by the employer providing facilitation to the workforce for leaves of absence in the circumstance when it needed.

But, it is the mutual agreement between the two parties – the employee and the employer – for collective bargaining by working unions, if any, and the contractual terms and conditions of the employment letter at the time of offer of a job and joining time, wherein may be one clause most of the times is presented that any rules, regulations, and policies will be binding upon the employees which the Government - say Federal law, State law or Local law – implies and do change from time to time, and whatever is in the public interest which is changed by the company policies, regulations, and rules, will all be binding upon the workforce and the organization, in the best interest of all concerned.

Moreover, employers may ask employees to first exhaust the paid time off limits and then apply for leave of absence without pay applied for in extraordinary circumstances. In several countries, like South Asia, the leave without pay is considered a service break which is not counted towards the service counting for promotions; it is named extraordinary leave applied in extraordinary circumstances.

Leaves of Absence can be extended or not?

Leave of absence can be extended or not is a question that needs a reply by our organizational legal advisor, because once your employee has exhausted all the legal grants and facilitation to her or him, it is now to consult legal advisors to keep from any violation as well as an obligation in terms of human right and litigation. 

Like California Department of Fair Employment and Housing has practiced in vogue as per the Fair Employment and Housing Act which necessitates employers to extend to five or more employees for provision of a reasonable accommodation to individuals with a physical or mental disability for applying for jobs and performing essential functions. A reasonable accommodation is, but is not limited to, as mentioned:   

• Job changing duties
• Leave provision for medical care
• Work schedules changing
• Work area relocation
• Electrical and Mechanical Aids provision

Employers in California must respond and engage timely with employees having such accommodation needs for performing certain job functions, failing which is unlawful. It is due to avoiding the barriers from the way of workers who need special accommodation requirements for certain types of jobs. This way it becomes an interactive process between the employer and the employee.

What is State Family Leave Legislation concerning leave of absence?

A Paid Family Leave (PFL) insurance program is implemented in California which started in conjunction with FMLA and the California Family Rights Act (CFRA) which has provisions for up to six weeks of paid leave.

Similarly, New York has a paid medical leave program for u to 12 weeks of paid leave at the rate of 67% of the state average weekly wage (AWW).

Most States in the US have considered paid family leave (PFL) programs to take into effect. As of 2022 start, several states enacted PFL programs, and others are in queue to start.

For extended leave programs, job protection laws are there. Moreover, to qualify for FMLA – return to work

 Act – programs’ benefits, an individual should have the below-mentioned prerequisites:

• One year of work experience with the Company where form leave has to take effect
• Have 1250 hours or 156 days of work done on the job
• 75 miles radius living in terms of the workplace and abode
• Working for the employer has at least 50 or more workers which at least work 20 working weeks in the current or previous year

What should you do for a leave of absence, if you are an employer?

As an employer, it's crucial to recognize the importance of granting leaves of absence. This not only demonstrates to your employees that they are valued assets and that their well-being matters, but it also acknowledges that their roles are essential to the smooth operation of your business. Moreover, having a workforce in good health and high spirits can significantly enhance performance.

It's a common observation that when employees take time off to manage personal matters, they often return to work rejuvenated and more motivated, which benefits the business in return. By extending such considerations, you can significantly reduce human resources absenteeism.

Properly managed leave policies can also be instrumental in boosting employee retention. Ensure that any changes to your paid time off policies are promptly communicated to your payroll department.

It is advisable to consult with legal advisors and refer to your government's official websites to verify the accuracy of all relevant facts, figures, rules, regulations, and policies when making decisions regarding leaves of absence and their payment schedules. This legal consultation should include guidelines on the allowable duration for paid or unpaid leave.

Viewing these consultations as a financial burden is shortsighted. Investing in legal advice not only ensures compliance but also protects your business from potential legal missteps, human rights violations, or other costly errors that could lead to sanctions and penalties.

Ensure that your leave of absence policies are clearly defined and communicated to not just your HR and financial teams, but to all employees. This transparency helps prevent any misunderstandings and ensures that both your workforce and business operations can continue smoothly and efficiently.

Related: Sick Leave Pay, Medical Leave of Absence, Bereavement Leave, Disability Leave, Family and Medical Leave Act of 1993 (FMLA)