Requests for leaves of absence rank among the most frequently encountered challenges faced by the HR professional because employers must contend with a patchwork of employee-friendly statutes, including federal, state and local leaves – it’s important to understand how these leaves coordinate because they often contain overlapping and sometimes conflicting employee rights and employer obligations.

1. HR Professional’s Role in
Managing Leave of
Absence
INSTRUCTOR: BARBARA TRUMBLY
MARCH 26, 2019
PRESENTED BY:

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3. Housekeeping
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6. Today’s Speaker
Barbara has 25 years of diverse human
resources and management experience that
spans start-ups and established
organizations.
She has spent the last ten years delivering
consulting and outsourced human resources
services to successful businesses throughout
California in various industries including high
tech, insurance agencies, law firms, medical,
marketing, and finance.
Barbara@TruHRbc.com
925.787.6190
TruHRbc.com
Barbara Trumbly

7. The HR professional’s role in
managing leaves of absence
• Understand the relevant leave laws and employers’
legal responsibilities.
• Educate managers to recognize when employees’
absences may fall under a leave law and to
communicate such absences with HR.
• Ensure that organizational policies comply with the
laws.
• Understand the interaction of such laws with other
state and federal laws.
• Communicate and assist employees in exercising
rights under the laws.

8. Employers must consider both state and federal leave
laws:
• Family and Medical Leave Act (FMLA)
• Sick Leave Laws
• Pregnancy Disability Leave
Medical leaves of absence typically also implicate
disability leave under:
• Americans with Disabilities Act (ADA)
• Workers’ Compensation law

9. Mandatory leave laws require "covered"
employers to give time off to eligible
employees.
Mandatory leaves do not apply automatically
to every employer.
Employers need to know which leaves they
are required to provide to their employees.
Covered Employer?

10. If employers are covered by a leave law,
they also may be required to:
• Post a notice about the particular leave law
• Provide information to employees about their rights
• Keep records about leaves requested and taken
• Grant eligible employees' requests for time off
• Maintain benefits during employees' leaves
• Reinstate employees to their former positions after they
return from leaves
• Avoid discriminating or retaliating against employees for
requesting, needing, or taking a leave of absence

11. Analyzing Requests For Leave:
• Is the employee requesting leave for their own serious health
condition?
• Is the employee applying for Family Leave to care for a
spouse/domestic partner, child, or parent who has a serious health
condition?
• Is the employee applying for military or qualifying exigency leave?
• Does the employee require intermittent leave or an extended leave of
absence?
• Has the employee provided a leave date and a return date?
• Is a medical certification required?
• Has the employee been provided proper notification and forms?

12. Leave Checklist
• Will the employee be using Vacation/Sick/PTO?
• Is the employee eligible for disability benefits or Workers
Compensation?
• How will healthcare premiums, 401K loans, or other deductions be
paid?
• Let employee know how much leave can be taken and whether a
fitness-for-duty certification will be required before the employee
will be permitted to return to work.
• Provide employee with any additional benefits that may be provided
by the company such as short term disability; in addition, provide an
explanation of when it may be used and time frames.
• Start tracking the time the employee is on leave and how the leave is
designated.

13. When a request is made, determine employee and
employer eligibility
 Company employs 50 or more employees within a 75-mile
radius of the location where this individual works.
 Employee worked at least 1250 hours during the year, prior to
the FMLA start date.
 Employee has not used FMLA during this 12-month period.
If all boxes are checked, proceed to implementing FMLA. If
any of the boxes are not checked, determine if ADA or
another leave may still apply.
Evaluating and Responding to Leave
Requests

14. An employee must give oral or written timely notice that puts
employer on notice of need for FMLA leave, timing and duration.
• No Magic Words – the employee only needs to provide the
employer with enough information to reveal that FMLA
leave may be needed.
FMLA Law states that it is the employer’s responsibility to provide
the necessary FMLA paperwork to its employees if they give notice
that they need leave for a potentially FMLA-qualifying reason.
The FMLA Notification Form: An employer must provide this form
to the employee within five days of a leave request.
Family and Medical Leave
Under FMLA

15. Provide the employee with the Leave of Absence policy
and applicable required forms. Determine if employee is
looking for intermittent leave or for an extended leave of
absence?
• Notice of Eligibility and Rights and Responsibilities
(completed by the employer) (WH-381) and
• Certification of Health Care Provider form (WH-380e)
• Certification of Health Care Provider for Family Members
Serious Health Condition form (WH-380f)
• Certification of Qualifying Exigency form (WH-384) or,
• Certification for Serious Injury or Illness of Covered Service
Member form (WH-385)
US Department of Labor
http://www.dol.gov/whd/forms

16. Illness, injury, impairment, or physical or mental condition that involves
either (1) inpatient care or (2) continuing treatment by a health care
provider.
A serious health condition must result from one or more of the following:
1. Inpatient care
2. Incapacity for more than three days with continuing treatment by a
health care provider
3. Incapacity relating to pregnancy or prenatal care
4. Chronic serious health conditions
5. Permanent or long-term incapacity, and
6. Certain conditions requiring multiple treatments.

17. Employer need not accept incomplete/vague requests
The FMLA Medical Certification Form: The employee’s
healthcare provider must complete a certification form in
order to ensure the validity of the employee’s, or the
employee’s immediate family members, serious health
condition. The employee must return the certification within
15 calendar days of receiving the form.
Employee has ongoing duty to notify employer of changes to
leave, including any extensions.
If unclear whether leave is FMLA, discuss with employee (and
document such discussions).
Family and Medical Leave Under FMLA

18. Leave may be taken for one or more of the following
reasons:
• Birth of the employee’s child, or placement of a child for
adoption or foster care
• To care for the employee’s spouse, child, or parent who has a
serious health condition
• For a serious health condition that makes the employee
unable to perform his/her job
• Eligible employees whose spouse, child or parent is called up
for active duty in the National Guard or Reserves for
“qualifying exigencies”
• An employee who is the spouse, son, daughter, parent, or
next of kin of a covered service member shall be entitled to a
total of 26 workweeks of leave during a 12-month period to
care for the service member

19. • The law providing the greatest protection will govern.
• Employers need not accept inadequate/insufficient proof of
need for FMLA leave.
• FMLA protection does not handcuff employers, but adverse
action must be well-reasoned and consistent with prior action.
• Document, document, document.
• If any employee is not eligible for or has exhausted FMLA leave,
employers must still assess whether other leave rights (such as
under the ADA) apply.
KEY TAKE-AWAYS

20. Protects a qualified individual with a disability who, with or
without reasonable accommodation, can perform the essential
functions of the employment position
What is a Disability?
• A physical or mental impairment that limits a major life activity
• Has a record of such impairment
• Is regarded as having an impairment
What is an “Essential Function” of a Job?
• The fundamental job duties of the position
• The reason the job exists is to perform that function
• Employer always determines the essential functions of a job

21. Leaves of Absence should be considered both as:
• A supplement to FMLA leave; or
• A substitute where employee is not FMLA eligible.
However,
• No obligation to provide indefinite open-ended
leave of absence.
• No obligation to keep employee on company
provided benefits
Reasonable Accommodation

22. Reasonable Accommodation
Any modification or adjustment in a job, an employment
practice, or the work environment that allows an
individual with a disability to enjoy an equal
employment opportunity. Examples include:
• Work Remotely
• Job restructuring
• Part-Time or modified work schedules
• Reassignment to a vacant position
• Acquiring or modifying equipment or devices
• Leave of Absence

23. • Federal Pregnancy Legislation, including anti-discrimination
laws
• Current State Legislation
• Entitlements and Benefits
• Employers legal obligations for providing leave for pregnancy
Pregnancy Disability Act (PDA)

24. Paid Family Leave (PFL) does not give employees the
legal right to take a leave of absence.
The PFL provides partial wage replacement in
situations in which employees are otherwise legally
entitled to take family leave, such as:
• When an employer's policy specifically grants
such leave
• In situations covered by the Family and Medical
Leave Act (FMLA)
Paid Family Leave

25. • Whether an employer must comply with a paid sick leave
law or ordinance varies by jurisdiction.
• Eligibility criteria for an employee to accrue sick time varies
by applicable state or local law
• Understand Qualifying Reasons for Leave
• Train Managers and Supervisors
Paid Sick Leave Law

26. • Review company attendance policies to ensure that
any mandatory notice periods do not violate the sick
leave law.
• Educate supervisors on how to spot fraud or abuse
without inadvertently retaliating against employees for
using paid leave.
• Review payroll practices to ensure employees are
receiving the proper rate of pay for the use of sick
leave, and that paystubs include any required
information.
• Develop a consistent tracking method to ensure that
employees accurately accrue time, and that any time
used is properly credited and deducted from the
Beware of Discrimination
and Retaliation

27. Workers’ Compensation Leave
Must be Provided When:
• Employee is employed by employer at time of injury
• Employee was acting within course and scope of
employment when injured
• Employee’s injury is caused by the employment, either
with or without negligence
• Caution: Workers’ Compensation may cover injuries at
home

28. Workers Compensation and
Telecommuters
Employers can implement the following practices that may limit
workers’ compensation liability for home-based employees:
• Create a telecommuting policy that outlines the employer’s
expectations for employees.
• Limit telecommuting to individuals who are well-suited for working
without regular supervision.
• Establish guidelines for a home office, such as a designated work
area, and provide training related to workstation setup and safety
measures, including ergonomics.
• When appropriate and possible, conduct periodic checks of
employee home offices to help identify and eliminate work area
safety hazards.
• Set fixed work hours and meal and rest periods for telecommuters.

29. The Jury System Improvements Act applies to all private
employers and protects eligible employees who serve as a
juror in federal court.
• Employers may not terminate, discriminate or retaliate
against employees who take such leave.
• Compensation During Leave
• Exempt Employees
• Non-exempt Employees
• Interaction With State Law
• Policies and Handbook Statements

30. Many states require employers to permit employees the
opportunity to vote if the employee's work schedule
makes it impossible to vote outside working hours.
• Be familiar with any state or local law that specifies how
much leave is required and whether the employer may
specify what hours leave may be taken; what
notification the employee is required to give; and
whether the leave should be paid or unpaid.
• Train supervisors on employee rights to time off for
voting.
• Time off for appointed election officials.
Voting Time Off

31. USERRA affects employment, reemployment, and retention
in employment, when employees serve in the uniformed
Services.
• Employers are obligated is to accommodate employees
who need to take a leave of absence to fulfill their service
in the uniformed services.
• State laws may place greater obligations on employers
with respect to uniformed services leave.
• Compensation and Benefits When Employee Is on Leave.
• Training Supervisors on USERRA Rights and
Responsibilities.
Military Leave

32. Crime Victim and Domestic Violence Leave
A number of states have passed domestic violence leave
laws, which give victims of domestic violence the right to
take time off for certain reasons.
• This time may be paid or unpaid, depending on your
state's law.
• Some states also allow those who are victims of, or
witnesses to, a crime to take time off to attend court
proceedings.
• These laws apply to victims of crime in general, which
includes victims of domestic violence.
• The federal Family and Medical Leave Act may also
provide a right to leave for some domestic violence
victims.

33. Several states offer leave for employees of private employers to
donate bone marrow or blood, or to serve as an organ donor, in
addition to any other medical or personal leave provided.
Generally, the nature and length of the leave depends on the
underlying cause of the leave.
Employers should publish a written policy if the employer is
located in a state that requires such leave or if this is an
important value to the employer.
Organ or Bone Marrow Donation

34. Each state varies regarding the leave employers are
required to allow employees to take and whether
the employer must pay the employee while the
employee takes legally permitted leave.
To review information about individual state leave
laws, please check your state and local Web pages
for current statutes.

35. U.S. Equal Employment Opportunity Commission
https://www.eeoc.gov/employers/smallbusiness/checklists/leave_policy_tips.cfm
US Department of Labor
http://www.dol.gov/whd/
The Americans with Disabilities Act
https://www.ada.gov/
Leave Laws by State and Municipality
https://www.xperthr.com/fifty-state-charts/leave-laws-by-state-and-municipality
Job Accommodation Network (JAN)
https://askjan.org/

36. Thank you
Barbara Trumbly, J.D
Barbara@TruHRbc.com
925.787.6190
TruHRbc.com

37. Questions

38. 38
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HR &
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Talent
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Time &
Attendance
› Ascentis NOVAtime
• Real-time accrual balances
• Automated leave management
• Streamlined management of FMLA
› Ascentis HR
• Self-service requests and approval from
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39. Learn more
Request an assessment of your organization’s leave of absence policy today!

40. How to earn credit
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Program codes delivered
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