Considerations for Handling Requests for Leave

By James V. Thompson

A major portion of HR administrators’ time is on spent on effective daily management of the workforce, although hiring and terminations seemingly receive more publicity.  One of the potential pitfalls in efficient workforce management is handling employees’ leave requests.  Do you grant the leave request?  Do you deny it and face backlash from the spurned employee?  And how does responding to one employee’s leave impact the workload of other employees?  Let’s discuss some considerations for handling leave requests.

First, what does the company’s written policy or employee handbook state about leave requests?  When and how should employees apply for leave, and what grounds and time parameters for leave are allowed?  Employers should follow the policies already in place to ensure consistency in their management approach and fairness to all employees.

Second, and especially if no employee handbook or written leave policy exists, has the company already set an unofficial pattern or precedent on the subject?  Consider whether the company has had any similar instances involving other employees.  What process was followed, and what decision was reached?  Inconsistent treatment of employees can damage morale and may also heighten the risk of potential discrimination claims.

Third, what’s the company’s justification for not granting a particular leave request?  Before denying a leave request, you should have a well-articulated and legitimate business reason for the denial which will stand up when tested against applicable employment laws, such as the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), workers’ compensation laws, and any other state-specific laws governing employee leave.

Federal Laws Governing Leave

Recall that ADA prohibits discrimination against employees with disabilities and requires the employer to conduct an interactive reasonable accommodations analysis once the employer has knowledge that an accommodation may be needed.  In some instances, reasonable accommodations could include a leave of absence.  The ADA requires an employer to provide a reasonable accommodation for the known disability of a qualified employee, unless it would impose undue hardship on the employer’s business. Unpaid leave or modification of attendance policies may be considered reasonable until they impose an undue hardship on the company.  However, indefinite leave is generally unreasonable as an accommodation and usually need not be considered.  An employer should be mindful to document the steps taken in the ADA interactive process for considering whether any type of requested leave would be a reasonable accommodation or an undue hardship. Factors to consider include the company’s operations structure and available resources, the net cost for the leave requested, and the impact of the leave request on co-workers who would take on the absent employee’s work responsibilities and duties.

Likewise, FMLA requires certain employers provide leave to eligible employees for qualified events.  The range of qualified events includes a serious health condition affecting the employee or employee’s close family member; the birth of the employee’s child or receipt of a child for adoption or foster care; and having a close family member on active duty or under an impending call to active duty with the National Guard or Reserve.  Longer FMLA leave is provided to care for covered armed services members with a serious illness or injury.  FMLA leave may be taken on an intermittent or reduced-schedule leave basis with some exceptions.  While FMLA does not require paid leave, it does require employers to allow appropriately certified leave, reinstate the employee to the same or equivalent position at the end of the FMLA leave, and continue an employee’s health benefits during the FMLA leave at the same level as before the commencement of FMLA leave.

If the employer has an indication that the employee’s requested leave might qualify under FMLA, the employer should discuss with the employee about the potential application of FMLA and the duties of both parties under that law. An employee seeking leave for the first time for an FMLA-qualifying reason doesn’t have to expressly assert FMLA rights or even mention the FMLA.  Once the employer has enough information to determine if the leave is for a FMLA-qualifying reason, the employer then has a duty and short timeline to notify the employee of his/her leave eligibility, the employee’s specific expectations and obligations under FMLA, the requirement for medical proof or certification, and the anticipated consequences of the employee failing to meet the obligations or provide adequate medical certification.  Even where the employee’s initial response for medical certification is incomplete or insufficient, the employee may still have additional time to cure a deficiency and obtain FMLA leave. 

State-Specific Leave Laws in the Mix

Employers conducting business in multiple states need to be mindful of state-specific laws providing for additional leave.  For example, the Tennessee Family Leave Act covers certain larger-workforce employers, and provides leave for childbirth and adoption for up to four (4) months.  It also gives the individual employer discretion whether such leave will be paid or unpaid.  Such leave period exceeds the leave for birth or adoption granted under FMLA.  Employers can fall into a trap if state-specific leave laws apply but they only consider and offer the federal FMLA leave.

Other laws particular to states and even municipalities require employers to provide additional, and sometimes paid, leave.  As of April 2019, 11 states and the District of Columbia provided certain types of paid leave. Some of those state laws allow employees to use accrued leave time for “safe” time if they are targets of domestic violence, sexual assault, stalking, or even harassment.  Who is covered, the allowable reasons to use leave, and the waiting periods before certain leave can be used vary.  In states such as California, Maryland, New York, Texas, and Washington, cities and counties have also enacted additional laws regulating leave time. Employers should consider the location of the employee requesting leave, and what additional state laws may apply to him/her.

Gender Equality Affecting Leave Requests

The Tennessee Family Leave Act brings up another consideration:  gender equality in family leave acts.  Tennessee’s law was initially written as a maternity leave act, but was recently amended to use gender neutral terms.  Now, it permits leave by male employees.  In place of a maternity leave policy, employers may need a new parent leave or parent-child bonding leave policy, to ensure equal treatment of male and female employees.  The EEOC has taken the position that employers not treating male and female employees equally under a “maternity leave” policy may be violating Title VII and the Equal Pay Act.  This reasoning does not necessarily apply to policies applicable to female employees who need time to recover for medical issues after giving birth.  If male employees seek leave for the birth or adoption of a child, employers should not be quick to dismiss their leave request, consider the leave as merely “vacation,” or provide a shorter leave period than allowed for female employees.

Overlap of Work Injuries on Leave

Lastly, employers should consider whether the employee’s leave is grounded in a work injury, such that state-specific workers’ compensation laws apply.  If the employee has a valid work-related injury and the appropriate medical provider has taken the employee off work, then the employer may have little choice on granting the leave.  The employer may also be precluded from forcing the employee to use accrued leave time.  The employer should ensure proper documentation of any off-work status or work restrictions.  If the employee is returned to work in a light-duty capacity, the employer must also ensure compliance with all assigned work restrictions.

Another concern in the workers’ compensation arena is whether to maintain the injured worker as an employee while he/she is treating and cannot work, for a return to work once the employee completes treatment.  Some states may allow additional workers’ compensation disability benefits if the employee is not returned to work.  While this is no absolute reason to keep employing a worker who cannot perform an available job or who has violated company rules, it may impact the ultimate cost of a workers’ compensation claim. There are a myriad of considerations for employers when faced with an employee requesting leave.  Employers should be mindful of multiple federal, state, and even local laws in the location where the employee is working.  They should consider all applicable laws and past similar instances, and should wisely document their decision-making process to ensure all leave requests are handled fairly and appropriately.