By Amanda Trif, HR Business Partner at Trüpp
If you have ever administered a leave of absence, you probably understand how complicated the procedures and timelines can be. Details such as the employer’s industry, employee count, type of leave, or even employee location can impact the leave administration process. Although leaves of absence can vary in their level of complexity, administrators can find themselves making mistakes on even the simplest of leaves. We’ve compiled a list of six areas where missteps most commonly occur when administering leaves of absence.
1. Leave Measurement
Most federal and state leaves have a defined period in which an employee may be out on job-protected leave. Under the federal Family Medical Leave Act (FMLA), this measurement period is 12 months, but employers must select one of four options to be used uniformly for all employees:
- CALENDAR YEAR: A 12-month period that runs from January 1 through December 31.
- ANY FIXED 12-MONTHS: Any period of 12 months as established by the employer (i.e., seniority dates, benefit plan years, etc.).
- 12-MONTHS MEASURED FORWARD: 12 months measured from the first date of leave usage.
- ROLLING 12-MONTHS MEASURED BACKWARD: A 12-month period where any leave time taken in the prior 12 months is deducted from the 12-week FMLA entitlement.
Leave administrators should ensure that they are following the measurement period their organization selected and understand how to apply it appropriately based on compliance rules and the employer’s policies. For a more comprehensive review of how FMLA may be calculated, please visit our article, A step-by-step process for complying with the FMLA.
2. Other Protections
Administrators should confirm whether the employee is entitled to additional protections. For example, the District of Columbia Paid Family Leave Act, which provides employees with protected leave up to 16 weeks broken down by unique life events that differ from the 12 weeks per year allowed under the provisions of FMLA. The New Jersey Family Leave Act provides up to 12 weeks of family leave for bonding with a child, but not for an employee’s serious health condition. If a New Jersey covered employee experienced a pregnancy disability, the leave would not qualify under the New Jersey Family Leave Act. Still, it may be eligible under FMLA or under The New Jersey Law Against Discrimination (NJLAD or LAD), which requires employers to reasonably accommodate pregnant employees. In these situations, employers should be tracking each applicable federal or state leave separately to maintain the accuracy of leave administration and recordkeeping.
Other protections may come into play with differing requirements from the federal FMLA provisions. State-mandated paid sick leave programs, for example, are often required to run concurrently with protected leave. In contrast, other protections, such as Oregon’s Workplace Protections for Victims of Domestic Violence, Sexual Assault, or Stalking, cannot run concurrently with the state’s protected leave program unless the employee experiences a serious health condition as defined by the state’s leave laws. Employees requesting accommodations under the ADA must go through a separate process that may have different recordkeeping requirements.
3. Concurrent Leaves
In situations where employees are taking multiple leaves, employers need to understand if the leaves can be run concurrently. For example, if an employee has intermittent and continuous leaves that intersect in the 12-month period established by the employer, the employee may exhaust all available leave. When an employee exhausts all available leave, they may have to wait until additional leave becomes available, initiate the ADA interactive process for reasonable accommodation, or request a personal leave of absence if such a program is available under the organization’s policies.
4. Recordkeeping Requirements
Establishing a precise tracking or recordkeeping procedure is essential to the administration process. Whether an employer uses a simple spreadsheet, their time and attendance program, or another platform, the method they use should be easy to understand and recoverable if an employee, an attorney, or a state or federal agency needs to review the information.
The method that employers select to track leaves should be able to clearly distinguish concurrent or multiple leaves, such as state and federal leaves, workers’ compensation leaves, ADA leaves, personal leaves, and whether the leave is protected, not protected, continuous or intermittent.
If an employer intends to use their timekeeping program to track these leaves, they should ensure that the appropriate pay codes are built into the timekeeping system. Employers should establish a procedure by which the manager, the employee, or a leave administrator can apply the unique pay codes and ensure that a report can be run to collect the data for recordkeeping purposes.
Maintaining open communication between the employer and the employee taking leave is critical to prevent leaves from flying under the radar. Under FMLA, employers or administrators must provide documentation to the employee that communicates the Notice of Rights and Responsibilities for taking leave, when leave is formally designated or approved, and when a release to return to work is required. Additionally, the employee should provide the employer with a report of their intent to return to work while they are out on leave. By maintaining contact between both parties, the employee and the employer build trust and confidence in each other and the organization’s leave process.
6. Recertifications & Releases
There may come a time when an employee’s leave needs to be recertified. Semi-annual recertifications for intermittent leaves are generally a best practice, but when an employee appears to be taking leave outside of the frequency outlined in the certification by their attending physician, it might be time to request a recertification. Recertification provides clarity about the employee’s limitations and presents an occasion for the employer to review opportunities for the employee to continue working in their position. Keep in mind, leave can only be recertified every 30 days under FMLA, upon expiration of the length of time the certification form states the employee needs leave; or every six months, regardless of how long the certification form states the employee needs leave.
Conversely, when an employee is ready to return to work and was out for a serious health condition, employers should do their due diligence in collecting a release to return to work, especially if the employee’s position is classified at a higher safety risk. The health and safety of the employee should always be the priority concern; requesting this information enables the employer to feel more confident with the employee’s safe transition back to full duty.
Keep these critical factors in mind during the leave administration process to identify potential pitfalls before they become a problem. Although managing leaves of absence presents a challenge for administrators, having a well-established leave administration program facilitates employee engagement and assists with attracting and retaining top talent. While complex, protected leaves provide an opportunity for employers to retain employees while they cope with major life events.