Leave Policies: Personnel Plan Versus State, Federal Laws

Peg O’Brien

Both state and federal laws govern an employee's ability to take time away from work. These include, but are not limited to, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), Uniformed Services Employment and Reemployment Rights Act (USERRA), the New Hampshire Workers' Compensation Law (RSA 281-A), New Hampshire's maternity leave statute (RSA 354:7,VI(b), the New Hampshire law governing reasonable accommodations for disabled employees (RSA 354-A:7, VII), and the state Crime Victim Leave (RSA 275:62). In addition, employer-adopted personnel policies or collective bargaining agreements may also provide for leave, sick, vacation, or other personal time. As these laws and policies were drafted independently of each other, employers are left to determine how the various leave statutes and their own personnel policies and contractual obligations interact with each other.

Public employers faced with the difficult task of navigating this maze should consider approaching questions relating to leave as follows:

1. Know which laws apply to your workplace. Employers should develop a simple checklist of the various federal and state leave laws that apply to their workplace.1 For example, a very small town may not have to consider some of the federal laws that apply only if an employer has more than 15 employees (e.g. the ADA). If the employer has fewer than 50 employees, none of those employees would be eligible for FMLA leave.

2. Know which laws apply to the specific leave request. After an employee requests a leave of absence (LOA), the employer should document the request and then carefully consider which leave laws, if any, may apply to the specific situation, including whether the law's definition of an "employee" is met, the nature of the leave, and whether the employee has met the minimum requirements for leave eligibility, such as the FMLA's 12 months of employment and 1,250 hours of work in the prior 12 months. Employers should also consider an employee's request against the entire list of available leaves, as sometimes more than one may apply to a given LOA situation. An employee who requests leave for the birth of a child may be eligible for leave pursuant to the FMLA as well as the state maternity law. Employers should also consider the length of the requested leave and whether an employee's eligibility for a leave may change over time. For example, a female employee who has been employed for only 11 months is eligible for maternity leave immediately, but may also be eligible for FMLA leave after completing an additional month of employment. When more than one leave law applies, the general rule is that an employer must grant the greatest degree of benefit created by the combination of applicable laws.

3. Determine whether the public employer offers any leave applicable to the employee's request. Many employers also offer employees personal leave of absences to cover situations when an employee has a compelling need to be out of work, but the employee may not be eligible for leave under state and federal laws, such as where the employee has not worked long enough to be eligible for FMLA leave. These personal leave of absence policies are often discretionary and unpaid, and may have strict eligibility requirements.

4. Determine the parameters of any applicable leave and the effect on an employee's benefits. Employers should review not only the terms of a statutorily-required leave of absence, but their own policies and collective bargaining agreements to determine the full scope of their leave obligations. This review should include a determination of the maximum duration of the leave, whether the employee has a right to reinstatement, what, if any, reporting obligations the employee might have, whether the employee is restricted from other employment while on leave, and more. In addition, most employers have, or should have, written policies that describe that status of employee benefits while an employee is on leave, such as how an employee may use or participate in the employer's health insurance benefits and retain eligibility for health insurance, vacation and sick time benefits. As leave laws are subject to frequent amendments, it is important to review and update these policies on a regular basis.

5. Communicate with the employee and obtain required documentation and medical certification, or both, and approve or deny requested LOA. After determining which leave laws apply and whether the public employer has any specific policy, collective bargaining obligation, or practice or procedure that applies, the public employer should then acknowledge receipt of the request and ask for any necessary and required documentation or medical certification, or both, from the employee. If the employer grants the leave of absence, it should inform the employee of the terms of any applicable leave and the employer's expectations about documentation, communication, and notice of return. This should cover whether the employee needs to provide a fitness-for-duty certification before returning. The employer should also clearly inform the employee about how his or her benefits will be affected.

The FMLA requires employers to provide specific notice to employees of their rights and responsibilities, and the United States Department of Labor (USDOL) has created model forms for employers to use, available on the USDOL's website.

If a public employer determines that an employee is ineligible for a particular leave, the employer should tell the employee. Again, it is important to review the employee's eligibility pursuant to other applicable leave statutes and workplace policies. The employers who fare best before courts and regulatory agencies are those who are sympathetic to their employees' needs and work hard to be fair and afford full and generous leave rights to their employees.

6. Calendar and monitor the leave while in progress. Although it sounds burdensome, employers should review the status of leaves on a regular basis and generally communicate with employees who are on a leave of absence, at least monthly. Employers should be vigilant about monitoring changes in employee leave rights and inform the employee in a timely manner, of any changes. For example, an employee who may not have been eligible for FMLA initially may become FMLA eligible while out on alternative leave; or an employee's right to a leave of absence may expire due to a change in medical condition. By keeping the channels of communication open and ongoing, employers are in a better position to identify any changes in eligibility status.

7. Carefully assess return to work issues or separation from employment milestones, or both. The public employer should remind the employee of any reinstatement requirements (e.g., medical certification requirements) and the specific date on which the employee is expected to return to work prior to the employee's return to work from a leave of absence. If the employee is unable to return to work on the set date, the employer is cautioned against automatic termination policies. The most frequent problem arises at the end of an FMLA leave. When employees have exhausted their 12 weeks of FMLA leave, employers often assume that they have complied with their legal obligations and are free to terminate an employee who fails to return to work. However, upon exhaustion of FMLA benefits, an employer may still have obligations under the ADA. Accordingly, before an employer terminates an employee for not returning to work, the employer should obtain additional information as to the reason for the delay.

At any decision-making juncture, it is important for the public employer to review its obligations under all of the state and federal laws. Proximity between an employee's leave and discharge will undoubtedly look suspicious in all circumstances. As a practical matter, employers will bear the burden of proving that the discharge was motivated by legitimate reasons unrelated to the protected leave. Employers must be prepared to justify their decisions and offer clear, consistent, and well-documented reasons for their actions.

Peg O'Brien is an attorney with Devine, Millimet & Branch, PA. and is a member of the firm's, Labor & Employment Practice Group. She may be contacted by email.

1Please contact LGC if you would like a general employer LOA checklist to use as a guideline.