May 11, 2018

Avoiding Problems with Employee Leave of Absences

Leave laws are complex and employers face serious compliance challenges tracking the eligibility of their employees’ leave of absences. If an employer fails to comply with state or federal leave of absence laws or their own company policies, it can face potential liability.

As an employer, it is important to minimize the effects an employee’s leave of absence may have on your business, while still providing the time away from work your employee may be entitled. With a fortress of leave laws protecting employees, employers should exercise caution to guard against costly litigation should a dispute arise. Extended leaves may place a hardship on business operations, including the cost of replacement labor and lost productivity.

The following is a summary of some applicable provisions, not a complete recitation of all governing laws, and should not be construed as legal advice or an opinion on specific facts that may apply to you.


The Family Medical Leave Act (FMLA) is a federal law that protects a covered employee’s job while he or she takes an unpaid leave of absence for medical or family obligations. The FMLA requires covered employers to maintain employees’ health benefits during leave and restore employees to their same or an equivalent job after leave. FMLA leave generally extends up to 12 weeks during an employer-specified 12-month period, but up to 26 weeks of leave are available to care for a military family member. It sets requirements for notice, by both the employee and the employer, and provides employers with the right to require certification of the need for FMLA leave in certain circumstances. The law protects employees from interference and retaliation for exercising or attempting to exercise their FMLA rights and includes certain employer recordkeeping requirements. The FMLA also provides for continuation of group health insurance coverage.

Generally, an employer is covered under the FMLA if it has 50 or more employees on its payroll for 20 or more calendar workweeks (which do not need to be consecutive) in either the current or preceding calendar year.

An employee is generally eligible to take FMLA leave if the employee has worked for the employer for at least 12 months, worked 1,250 hours over the 12 month period prior to taking leave; and at least 50 employees work for the employer within a 75-mile radius.

The state counterpart to the FMLA is the California Family Rights Act (CFRA), which mirrors the federal law in most, but not all, respects. For example, pregnancy as a serious health condition is covered under the FLMA, but not under CFRA. As a result, leave under CFRA runs consecutively with the Pregnancy Disability Law (PDL), not concurrently. For purposes of this article, any reference to the FMLA would also apply to CFRA leave.

While these laws and others (including, but not limited to, the Americans With Disabilities Act, workers compensation, and the California Fair Employment and Housing Act) protect employee rights, employers can take the following actions to protect their rights to effectively manage FMLA leave specifically and stay ahead of issues that may arise.


Document All Absences

Documentation is critical in administering the leave as it can support any action that might be needed in the future. Employers who fail to track employee leave eligibility may expose themselves to potential liability, including a costly wage and hour dispute, or cause their employee to lose their health plan benefits just when they need the coverage the most.

All absences, whether they are due to illness or injury and including vacation requests, should be documented. This allows such requests to be compared with requests for FMLA leave to help detect possible abuse as well as limit liability.


Double-Check Eligibility

When an employee requests FMLA leave, it is critical that the employer verifies that the employee is eligible for FMLA leave. Courts have ruled that if employers represent that an employee qualifies for FMLA leave and the employee acts based on that representation, the employer would need to honor such eligibility. Double-checking eligibility can minimize this potential risk.


Employers May Require Employee to Submit Certification to Support FMLA Need

Employers should generally request a medical certification and provide the form to the employee within five business days of when the employee notifies the employer of the need for leave or, if the leave is unforeseen, within five business days of when the leave starts. Employers often request the certification when providing the required notice of eligibility, rights, and responsibilities to the employee. The certification is a document or form that is completed by the employee and, when appropriate, a health care provider.

The certification will allow the employer to:

• Understand the likely periods of absences; and

• Verify that an employee, or the employee’s ill family member, has a serious health condition (or, in the case of military family leave, that facts exist to support the employee’s request for such leave).

The employee is required to provide the initial certification if his or her employer requests it. Employees are responsible to find a health care provider to provide a complete and sufficient certification, and to pay for the cost of the initial certification. After acquiring a complete and sufficient certification, an employer is not permitted to ask for more information, such as requiring a doctor’s note for each FMLA-related absence. Requiring a doctor’s note for each unpaid FMLA related absence may be considered interference with the employee’s use of FMLA leave.


Train Managers and Supervisors

Managers and supervisors should know the basic provisions of the law as it pertains to leave of absences, details relative to employers covered FMLA and the requirements for employee eligibility. This information is in addition to your company’s specific policies and procedures relative to leave of absences. Educating your leadership will not only help them understand their employee’s rights to FMLA leave, but helps the company avoid risks and aids in identifying leave abuse

To prevent problems with wage and hour claims and health plan eligibility, it is important to ensure that your Human Resources Department is educated on the industry’s best practices for legally complaint leave and disability policies and enforces them. Western Growers provides training, resources and legal specialist referrals to ensure that your Human Resources Department is educated, informed, and up to date on the law’s latest requirements.

For more information about training, Western Growers members may contact Lupe Cuevas at [email protected].