What to Do: Administering Paid and Unpaid Leave Correctly
Is Your Leave Program Compliant?
Administering leaves of absence correctly is one of the biggest fiscal and operational challenges facing employers today. The recent addition of new paid leave laws across the country and the possibility of national, comprehensive paid family and medical leave has highlighted the need to make sure your leave program is compliant.
Identify Laws, Rules, and Regulations
Private employers with 50 or more employees and all public sector and school employers must comply with the federal Family and Medical Leave Act (FMLA). But the FMLA is the floor, not the ceiling. You may be subject to additional state, local, or federal leave requirements depending on your location and the type of work you do.
Identify Contractual Obligations
Employees may also have leave rights, paid or unpaid, from contracts they’ve signed. Whether it be an individual employment agreement or a collective bargaining contract, you need to know what leave they’re entitled to under the contract.
Review Your Disability Accommodation Process
Even employees who have run out of leave may be entitled to additional leave under the Americans with Disabilities Act (ADA) and similar state disability statutes. Employers may need to determine if leave would help the employee perform the essential functions of their job—without putting an undue burden on the employer. This can be complex and difficult to determine, so work with your legal counsel.
Understand Your Military Leave Obligations
The Uniformed Services Employment and Reemployment Rights Act (USERRA) gives up to five cumulative years of leave to individuals on military duty. Employers are required to provide a notice of USERRA rights, benefits, and obligations. State law may also grant certain protections to individuals on leave to perform military service.
Carefully Handle Leave for Workplace Injuries
When leave is needed because of a workplace injury, state workers’ compensation statutes may also come into play. Keep in mind that your insurance carrier is not responsible for identifying when leave might be protected or required by another rule or regulation, such as the FMLA, ADA, or similar.
Document Policies and Notify Employees
Your written policies and procedures are your chance to explain how all of these different legal obligations fit together, and to give your employees a map of how to make the best use of all available options.
Answer the Important Questions
- When will FMLA run concurrently with other types of paid or unpaid leave provided to your employees?
- How do employees access employer-provided leave benefits, such as short- or long- term disability?
- How do these benefits coordinate with other programs, such as state-offered temporary disability insurance?
American Fidelity will continue to monitor and communicate regulatory changes to help employers succeed in benefits management. Subscribe for updates at americanfidelity.com/pfml.
This blog is up to date as of January 2022 and has not been updated for changes in the law, administration or current events.
