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Bernard J. DiMuro, Jonathan R. Mook, and Michael E. Barnsback, Editors
DiMuroGinsberg, P.C.
Vol. 19, No. 6
July 2007
THE EMPLOYEE HANDBOOK
Responding to employee absences and leave requests
by Michael E. Barnsback
This regular feature examines policies to consider for your employee handbook. Consistent with this month's theme, we're looking at several laws that govern how you must respond to certain leave and absence issues. The laws we discuss may appear to
conflict with each other, and they certainly can be confusing, so take the time to develop and administer a clearly articulated, integrated set of leave policies for your workforce.
FMLA
The Family and Medical Leave Act (FMLA), which applies to employers with 50 or more employees, provides eligible employees with up to 12 weeks of unpaid leave for their own serious health condition, to care for a family member with a serious health
condition, or for the birth or adoption of a new child. The FMLA can be difficult to administer — it has detailed eligibility requirements for employees and strict obligations for employers.
Providing notice of their leave rights to employees is a key element of the FMLA. In fact, the law requires covered employers that have an employment manual to include detailed information about FMLA leave entitlements and obligations in their
handbook.
Don't try to reinvent the wheel when explaining the required FMLA notices. Instead, use language directly from the FMLA and its regulations. The U.S. Department of Labor's website at www.dol.gov is an
excellent resource.
In addition to the mandatory notice requirements, you might want to consider adopting the following supplemental policies:
- Use of sick leave. Although FMLA leave is unpaid, an employee may use accrued sick leave to receive pay during her FMLA leave. It's a good idea to adopt a policy that requires employees to exhaust their sick leave during FMLA leave for
their own serious health condition. If an employee is permitted to hold onto accrued sick leave while out on FMLA leave, she could use her sick leave at the end of her FMLA leave to extend her time on leave. The Act permits you to adopt a policy
requiring employees to use sick leave during FMLA leave. Similarly, if you have a short-term disability leave policy, you may want to require employees to use its benefits during their FMLA leave to limit the total amount of leave available.
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Written notice of leave. You should adopt a policy that requires employees to submit a written notice requesting FMLA leave. That forces them to comply with the Act's notification periods and helps with your recordkeeping. Even if you have a written
notice policy, don't forget that you remain ultimately responsible for recognizing when leave falls under the FMLA and for properly designating it as FMLA leave.
- Return-to-work certification. You may want to consider adopting a policy that
requires a return-to-work certification or release from the employee's treating physician for all types of medical and disability leave. This type of policy allows you to make sure it's safe for the employee to return to work.
- Limitations on
work activities while on FMLA leave. The FMLA permits employees to take leave to care for family members' serious health conditions. There have been cases in which employees on FMLA leave to care for family members have used the time off to work in
their family members' business or some other business. Unless you don't care whether your employee is working for someone else during his FMLA leave, you should adopt a policy that prohibits employees from engaging in any business while taking FMLA
leave.
PDA
The Pregnancy Discrimination Act of 1978 (PDA) prohibits discrimination on the basis of pregnancy. The PDA requires you to make decisions affecting women who have pregnancy-related medical conditions based solely on their ability or inability to
perform their essential job functions.
The FMLA also provides leave entitlement to pregnant women. When you adopt any leave policies, keep in mind that pregnant women must be treated the same as other employees. Some employers have violated the PDA by establishing policies requiring
pregnant women to take mandatory leave. Don't fall into that trap. It's up to each female employee to decide when and if to take leave.
ADA
The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of a disability. The ADA requires you to provide disabled employees with "reasonable accommodations" that allow them to perform their essential job functions. Under some
circumstances, a reasonable accommodation may include allowing the employee to take a leave of absence.
In adopting mandatory attendance and leave policies, remember that any rigid policy may inadvertently violate antidiscrimination laws like the ADA. Although you may continue to adopt and enforce attendance and leave policies, you must be able to make
adjustments to your policies to provide reasonable accommodations.
FLSA
The Fair Labor Standards Act (FLSA) governs minimum wage and overtime requirements for nonexempt employees. The FLSA also creates two important leave issues:
- Don't dock exempt salaried employees' pay. If you have a policy that docks salaried employees for being absent for less than a full workday, destroy their exempt status and they revert to being an hourly employee. You may require salaried
employees to use accrued paid leave for a partial day's absence.
- Nonexempt hourly employees may not receive compensatory time off. Hourly employees must be paid for all of the hours they work.
Bottom line
As an employer developing employee leave and absence policies, you must comply with the FMLA, PDA, ADA, and FLSA. The policies may appear to offer conflicting requirements, which you will need to finesse as you draft them. As always, it is a good
idea to have your policies reviewed by an employment attorney well versed in federal and Virginia regulations.
Copyright 2007 M. Lee Smith Publishers LLC
VIRGINIA EMPLOYMENT LAW LETTER is a monthly publication provided as an educational service only to assist lay persons in recognizing potential problems in their labor and employment matters. It is not meant to be construed as legal advice. Readers in
need of legal assistance should retain the services of competent counsel.
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