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Can I Take Six Weeks Off?
Responding to a Leave of Absence Request
Greetings!
An employee walks into your office, announces that he will be scheduling shoulder surgery to repair an old softball injury, and he asks for six weeks off. He says he doesn't expect to be paid, but you know it's your busy time of year, and this couldn't come at a worse time. Now what?
For many small businesses, an announcement like this can be a significant blow. Whereas large businesses have multiple people performing specific duties and can shift personnel to cover a loss, small businesses usually don't have that luxury. The loss of any one person can put a real strain on an organization. Bringing in a temporary employee is costly and can require a large investment in training. There is often no time, or it is simply not practical, to hire a full time replacement, even for an extended leave. What can you do? What options do you have? Can you say no? What message does this send to other employees?
If your business employes less than 50 people, then you are not obligated under FMLA (The Family and Medical Leave Act). That means that you are NOT required to grant the LOA and keep the person's job open until they return. [NOTE: This article does not address any situations in which USERRA (The Uniformed Services Act) or the ADA (Americans with Disabilities Act) might apply.]
As a small employer, declining the request for leave is an option, but is saying 'NO' the best solution? If you decline the request, and the employee insists on taking the time off anyway, you can terminate their employment in response. Your termination may be justified, but you may wind up with liability for an unemployment claim depending on the reason for the leave, and your ability to protest that claim. You might also damage morale amongst other employees if they view the termination as heartless and unjustified. If you decline the request, and the employee does continue to come to work, you could run the risk of a personal medical condition turning into a work related injury. Will working aggravate their injury and make it worse? You might wind up liable for a workers comp claim.
If 'NO' is not the answer, how can you say 'YES' without jeopardizing the staffing needs of your company? How can you say 'YES' without allowing employees to think they can come and go as they please? How can you say 'YES' without this costing you a fortune? Here are some key steps to follow to keep control of the situation, and to stay compliant:
Ask for Proof Ask for proof or documentation of the need for the LOA. Whether the request comes from your 'star' employee, or the person you wish you never hired, ask for something in writing. Not only is it important to be consistent in these requests and not show bias, you just never know who might be pulling your leg. Consider a situation where an employee wants to 'try out' working for another company before quitting his current position. He asks for a leave of absence, with absolutely no intention of returning to your company if the new position works out. You get taken for a ride and waste a lot of time while you 'wait' for his return. Make it a known policy that LOA requests require a Doctor's note or other evidence of the need for the time off. This might not work in all situations, but it will deter some employees from being completely dishonest.
Determine an End Date Determine an agreed upon end date if at all possible. Don't leave things open ended. If there isn't a set return date, then determine a 'status check' date so that you can talk again, and keep things on track. Two way communication with the employee is critical. Require them to notify you of any changes to their status, and insist on updates along the way.This will help you manage things from a staffing perspective during the absence.
Require Details about Work Restrictions If an employee takes an LOA due to a personal medical condition, be careful not to put them back to work without a release from their Doctor. Although the specifics of their medical condition are private to some extent, how those specifics affect their ability to perform the duties of the job ARE your business as the employer. Always find out what restrictions an employee has had placed on him or her by their doctor. DO NOT allow an employee to work in such a way as to exceed those restrictions, even if they say they are able.
Use Up All Accrued Vacation Time Inform the employee that once their LOA begins, they must first utilize all accrued vacation time prior to being put on 'unpaid' status. In a medical leave situation, an employee may prefer to rely on Short Term Disability benefits (if available) to cover lost income and reserve accrued vacation time for later use. You are not required to allow this. The disadvantage to the employer, is that the employee will not only be gone during the course of the leave, but will then be able to schedule additional time off later in the year to utilize the accrued vacation time. This could potentially add to your staffing challenges. In addition, if you allow an employee to retain their vacation time for later use, it sends the message that they can come and go when they please, and get paid for whatever time they choose. This is a bad precedent to set, and will make management of these situations even more difficult.
Collect Employee Premiums for Health Coverage If the employee is not receiving a paycheck during an unpaid LOA, regular premium contributions will not be collected through payroll deduction. Since the employee hasn't been terminated, and employee benefits are still in effect, arrangements should be made with the employee for those contributions to be paid to the employer. If the leave is for a fairly short period of time, it might be easier to simply wait until the employee returns to full duty, and collect a prorated share of their contributions from their next regular paycheck.
Ideally, your Leave of Absence Policy should be documented in your Employee Handbook. If you don't have a handbook, or it does not include this information, it is still critical that administration of LOA requests is uniform and consistent. What you allow for one employee, you should allow for all. What you require from one employee, you should require from all. The easiest way to get into trouble is to pick favorites in the workplace. Instead, determine bona fide business reasons behind each decision, and follow your own stated policies. Administering these policies can be tricky. There are few black and white answers, and many gray areas. If you need help navigating a Leave of Absence issue, please call me. I would welcome the opportunity to discuss it with you. Sandra
Sandra Teague, SPHR President |
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The Importance of Post-Accident Drug Screens
You may agree or disagree with the benefits of the recent Workers Compensation Reform Legislation that was signed into law on June 28th, 2011, but regardless of your stance, there is one undeniably positive note. Injuries that are caused by an employee being intoxicated or under the influence of certain drugs are NO LONGER compensable. In addition, the burden is on the employee to prove that drugs/alcohol intoxication was not the cause of the accident/injury. So what can you do to ensure that you as the employer can take advantage of this change in policy? Establish strict procedures that all employees are subject to a drug/alcohol screen following injury. Build this into your policies, and notify your medical providers.
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How to Avoid On-The-Job Drug Abuse
Pre-employment Drug Testing is one way to avoid hiring a person who has been abusing drugs or alcohol, but what happens AFTER an employee is hired? How can you prevent substance abuse from permeating your workplace, negatively impacting your business, and exposing your company to huge liability? Cathy Devine wrote in Workforce Management Online a terrific article called "How to Spot, Stop, and Prevent On-The-Job Drug Abuse". It is worth a read. Click on the link for the article.
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How HR Outsourcing Saves Money
In good times or bad, companies are always looking for ways to cut costs and function better, yet more efficiently. A key target area is employment. While wages and benefits should be maintained at competitive levels, the cost of administering employment can be reduced. Here are just a few ways that Advantage Employment helps its clients:
- Eliminate the internal cost of an HR administrator and outsource those duties for less.
- Stop allocating high level executive time to handle sensitive or confidential HR issues. Focus on your business instead.
- Stop paying an outside payroll provider steep rates for minimal do-it-yourself service.
- Reduce your exposure to dangerous lawsuits by enlisting the help of HR professionals. Show your employees that policies are sound, and prevent trouble makers from taking advantage of a loosely run organization.
- Reduce turnover in your staff by maximizing their understanding and utilization of the employee benefits that you already provide to them.
- Increase employee loyalty by providing them a resource to solve any employment question or problem.
- Don't lose a protestable unemployment claim. Each person who gets unemployment benefits who shouldn't can cost your company $4K to $6K in increased taxes each year.
- Don't let workers comp claims malinger. Improper case management and lack of a return-to-work plan will increase the cost of the claim and increase your mod.
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2021 Midwest Road
Suite 200
Oak Brook, IL 60523
630.705.5005
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