For many workers, the time they spend away from work can impact their performance just as much as the time that they spend there. To help employees stay healthy, focused, and to make time for other obligations, companies offer different leaves of absence. A leave of absence comes in many forms (most commonly in sick days, vacation, and medical leave) and is a crucial aspect of human resource management. With leaves of absence, employees are able to take time off work for various reasons while maintaining job security.1
There are a lot of legal considerations for leaves of absence, almost all of which is led by human resources professionals. Managing employee leave can be challenging for employers and their HR departments, as there are different types of leave, various laws and regulations to comply with, and potential legal risks.
In this blog, we will provide a comprehensive guide to employee leave of absence that covers the basics, legal requirements, and best practices for employers.
Leave of Absence Overview
First, it’s important to distinguish that a leave of absence is different than paid time off (PTO). PTO is a type of leave of absence that is voluntary and, as the name suggests, paid. For other leaves of absence, employees do not always take them willingly and they are not always paid.
Most companies have an employee handbook that outlines their policies on benefits, wages, leave time, and leaves of absence, but there are federal and state laws that they must comply with as well. This includes the Family and Medical Leave Act and the Fair Labor Standards Act. These laws are created, managed, and enforced by several departments, including but not limited to:
- U.S. Department of Labor
- U.S. Office of Personnel Management
- Employee Benefits Security Administration
- Occupational Safety and Health Administration
- Wage and Hour Division2
In 2023, Illinois joined Nevada and Maine in mandating paid time off that could be used for any reason.3
Mandatory vs. Voluntary Leaves of Absence
Mandatory leaves of absence are required by federal, state, or local law for employees. Some examples are military leave, jury duty, and voting days.1 If an organization does not comply with mandatory leave policies, employees can pursue legal action.
Voluntary leaves are given at the discretion of your employer. These can also be paid or unpaid depending on policies from your human resources department.1
Family and Medical Leave Act
Enacted in 1993, the FMLA gives eligible employees of covered employers unpaid, job-protected leave for specified family and medical reasons. During this time, any group health insurance coverage offered by their employer must continue under the same terms and conditions. Eligible employees are entitled to:4
- Twelve work weeks of leave in a 12-month period for:
- the birth of a child and to care for the newborn child within one year of birth
- the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement
- to care for the employee’s spouse, child, or parent who has a serious health condition
- a serious health condition that makes the employee unable to perform the essential functions of his or her job
- any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty” OR
- Twenty-six work weeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member's spouse, son, daughter, parent, or next of kin (military caregiver leave)
Americans with Disabilities Act
The Americans with Disabilities Act was signed into law in 1990 after years of protesting, lobbying, and education.5 It prohibits discrimination against people with disabilities in any form and guarantees that those people can enjoy the same employment opportunities, purchase goods and services, and participate in state and local governments.6
With respect to unpaid leaves for medical conditions, the ADA covers more employers and employees than the FMLA does, and if an employee has a disability (which is more than a serious health condition), unpaid leave for an extended amount of time can be a legally required reasonable accommodation under federal law.
Employees may also take time away from work for personal reasons. The following are some examples of personal leave.
Paid or unpaid days off following the death of a relative or friend. The days allotted may differ depending on if it is a first degree relative (e.g., spouse, domestic partner, child, parent, or sibling) or a second degree relative (e.g., grandparent, aunt, or uncle). The Fair Labor Standards Act (FLSA) does not require payment for time not worked, including attending a funeral. This type of benefit is generally an agreement between an employer and an employee, or the employee's representative.7
Paternity Leave or Prolonged Maternity Leave
Aside from the days allotted from FMLA, companies may offer paternity leave for the father of a newborn/newly adopted child to spend with their family as well. They may also give mothers a longer leave than the twelve work weeks granted by FMLA.
Jury Duty or Witness Duty Leave
If employees are summoned for jury duty or witness duty in court, they are eligible for time off. Federal law doesn’t require employees to be paid during jury duty, but some state laws do.8
An employee is entitled to time off, at full pay, for certain types of active or inactive duty in the National Guard or as a Reserve of the Armed Forces. This includes active duty, active duty training, and inactive duty training.9
Vacations and Holidays
The FLSA does not require payment for time not worked, such as vacations or holidays. Vacation and holiday benefits are usually an agreement between an employer and an employee (or the employee's representative).10 That said, the average American worker has 11 paid vacation days per year.11
Typical holidays that companies recognize are Thanksgiving, Christmas, Independence Day, New Year’s Day, Memorial Day, and Labor Day. Other organizations, like banks, might also get Martin Luther King Jr. Day, Presidents’ Day, and Columbus Day/Indigenous Peoples’ Day.
Some companies will distinguish sick days from vacation or other PTO. This is to ensure that employees have designated time for unexpected illness that won’t take away from their leisure PTO. The U.S. doesn’t have a nationally-adopted paid sick leave law, so states and municipalities have enacted their own.11
The average full-time worker gets eight paid sick days per year, and part-time workers usually get six days.12 Some companies have even started to offer mental health days so that employees can take time to rest, recharge, and focus on their mental health.
A furlough is a mandatory leave of absence that is usually meant to be temporary. Furloughs may be used when an employer does not have enough cash for payroll (for example, government shutdowns due to lack of budget approval) or when there is not enough work for all employees.13A furlough is intended to be a short-term solution to reduce expenses and employee hours so that they can avoid laying off workers.
During the COVID-19 pandemic, a lot of companies had to furlough employees because of the sudden economic challenges. More than 18 million workers were on furlough in April 2020.14
Legal Requirements for Employee Leave
Managing and overseeing leaves of absence can be difficult—dealing with all of the aspects outside of employees’ working hours takes a lot of energy and time. That’s why there are so many federal and state laws, departments, and policies to try to make it as straightforward as possible.
For example, what should a human resources professional do if they are asked to fire someone, but that person is on medical leave? Under certain circumstances, employers may be able to terminate someone on FMLA leave if the reason for the termination is unrelated to the leave and would have happened even if the employee weren’t on leave. It’s best to seek legal counsel in these cases to minimize risk and ensure all applicable laws are followed.1
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 these extensions. Again, companies should consult legal counsel to avoid claims that they violated the Americans with Disabilities Act (ADA) or any state laws. In California, for example, the Fair Employment and Housing Act (FEHA) considers medical leave to be a type of accommodation.1
Human resources and law professionals should also always be aware of Title VII of the Civil Rights Act, which protects employees and job applicants from discrimination based on race, color, religion, sex, and national origin.15 Title VII covers the full spectrum of employment decisions, including who gets to take leaves of absence, how long they can be, etc. An HR Law expert will know how to navigate situations that may compromise Title VII.
Best Practices for Managing Employee Leave
If you’re in the process of creating or updating policies on employee leaves of absence, consider these best practices to minimize complications.
- Establish clear policies and procedures for requesting, approving, and tracking leave. Document these policies and procedures in an easily accessible format and distribute it to all employees.
- Train managers and supervisors on all legal requirements and company policies. Establish protocol and point people for when issues arise.
- Communicate with employees about their rights and responsibilities regarding leave. Provide regular updates and check-ins for questions.
- Document all leave requests, approvals, and denials.
- Provide reasonable accommodations for employees with disabilities.
- Consult legal counsel for complex leave issues.
Excel at the Intersection of HR and Law with a Human Resources Law Certificate
When things start to get complicated regarding leaves of absence, a firm understanding of HR law will help you navigate situations confidently. That’s why the University of Pittsburgh offers an HR Law specialization, paired with the core Master of Studies in Law (MSL) curriculum. Focused on employee benefits, relations, and the working environment, this degree program will set you apart from your peers and make you eligible to sit for the Human Resources Certification Institute (HRCI) and Society for Human Resource Management (SHRM) exams within one year of graduation.
Reach out to an admissions outreach advisor to get more information and start the application process.
- Retrieved on September 28, 2023, from https://www.adp.com/resources/articles-and-insights/articles/w/what-employers-need-to-know-about-employee-leave-of-absence.aspx
- Retrieved on September 28, 2023, from https://www.dol.gov/general/dol-agencies
- Retrieved on September 28, 2023, from https://labor.illinois.gov/laws-rules/paidleave.html
- Retrieved on September 28, 2023, from https://www.dol.gov/general/topic/benefits-leave/fmla
- Retrieved on October 18, 2023, from https://dredf.org/about-us/publications/the-history-of-the-ada/
- Retrieved on October 18, 2023, https://www.ada.gov/topics/intro-to-ada/
- Retrieved on September 28, 2023, from https://www.dol.gov/general/topic/benefits-leave/funeral-leave
- Retrieved on September 28, 2023, from https://www.dol.gov/general/topic/benefits-leave/juryduty
- Retrieved on September 28, 2023, from https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/military-leave/
- Retrieved on September 28, 2023, from https://www.dol.gov/general/topic/benefits-leave/vacation_leave
- Retrieved on October 18, 2023, from https://www.paycor.com/resource-center/articles/paid-sick-leave-laws-by-state/
- Retrieved on September 28, 2023, from https://www.forbes.com/advisor/business/pto-statistics/
- Retrieved on September 28, 2023, from https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/furloughlayoffreductioninforce.aspx#:~:text=Furloughs%20are%20often%20used%20when,employer%20can%20avoid%20terminating%20employees
- Retrieved on September 28, 2023, from https://www.cnbc.com/2020/08/15/when-furloughs-become-layoffs-during-pandemic.html
- Retrieved on September 28, 2023, from https://www.ftc.gov/policy-notices/no-fear-act/protections-against-discrimination