Founder and Managing Partner
Employee leaves of absence are an unavoidable, albeit inconvenient, reality for most employers. From a policy and compliance standpoint, we place most of our focus (and rightfully so) on legally protected leaves, such as pregnancy/medical leaves or the other numerous leaves that California law mandates. As such, employers may not feel the need to follow any particular process in administering non-protected leaves of absence. This type of leave can occur when an employee needs to attend to a personal or family issue that is not for a protected reason, and often the need for such a leave occurs when the issue requires the employee to travel to a distant location. Although not legally obligated to grant such a leave, an employer may choose to do so anyway in order to retain a valued employee, or because the employer has compassion for the employee’s situation. Although the manner in which an employer administers this type of leave may not be as legally risky as a protected leave, improper administration of the leave can nevertheless result in frustration for the employer and lack of accountability by the employee. Here are some tips for successfully handling discretionary leaves that can minimize the risk of potential pitfalls:
- Require the employee to request the leave in writing and state the purpose of the leave. It is ideal to have a general Time Off Request form that can be used for all types of leaves so that there is consistent process for intake of leave requests. Requiring the employee to state the reason for the leave in writing provides documentation directly by the employee that the reason for the leave is not for a protected reason, on which the employer can rely. Without this documentation, there is the potential for the employee to later attempt to “morph” the leave into protected status by claiming that the original reason for the leave was for a reason warranting protected leave status. If the reason stated by the employee creates any potential ambiguity as to whether the leave is for a protected or non-protected reason, you can then obtain clarification at the outset and properly designate the leave accordingly. For example, if the employee states that they need leave to “help a sick relative” this reason could potentially fall within FMLA/CFRA coverage, but you need more facts as to confirm one way or another.
- Document the terms of the discretionary leave in writing to the employee. A writing should go out to the employee clearly stating:
- The leave start and end dates;
- The reason for the leave;
- That the employee is required to report back to work promptly upon expiration of the leave, and failure to do so without express management approval otherwise would result in job abandonment by the employee;
- That the employee is required to notify a manager or Human Resources of any changes in status of the leave;
- That the employee is not guaranteed reinstatement to their prior position if business needs require replacing the employee;
- The terms/instructions for payment of any benefits premiums while the employee is gone and that the employee’s benefits can be cancelled if the employee is delinquent in payments;
- Whether the employer reserves the right to terminate any benefits in accordance with the benefits Plan Documents, which would trigger the option for COBRA coverage, and if so, the applicable trigger date;
- Any other items required of the employee in relation to the leave—i.e., turning in any keys/equipment prior to leaving, transitioning the workload, obtaining sign-off of any pending records, confirming where to send any paychecks during the leave, etc.
- Keep in communication with the employee’s direct manager/supervisor. This includes copying the manager/supervisor on correspondence with the employee (especially the above written notice) and requiring the manager/supervisor to document and relay to the leave administrator any communications with the employee during the leave.
- Follow-up on transitioning the employee back to work, including: reinstating/reactivating any benefits that were cancelled, and issuing any notices/communications/training to the employee that occurred during the leave.
Although this process requires more steps at the outset, it will protect the employer at all stages of the leave and help avoid frustrating and risky misunderstandings. It is also important for employers to remember that, although they have significant leeway in whether to grant requests discretionary leaves of absence, they can expose themselves to potential claims of favoritism or discrimination/retaliation if their approval process is not consistent with business needs and other legitimate criteria.