What Is a Leave of Absence: Here's What Employers Should Know
- Recursos humanos
Lectura de 6 minutos
Last Updated: 11/29/2023
Table of Contents
Many employers offer paid and unpaid time off that may include family, medical or personal leave time as part of their employee benefits.
Learn more about types of leave, what to consider when employees request time away from work, and how to minimize the impact of their leave on your business.
What Is a Leave of Absence?
A leave of absence is authorized time away from work and is generally requested by an employee for special circumstances in their life. In certain instances, employees may be entitled to leave under federal, state and/or local law. Reasons for leave may include, but are not limited to:
- Childbirth or adoption
- Military leave
- The employee’s own serious medical condition
- Caring for an ill family member
- Jury duty
An employee leave of absence is distinct from existing benefits such as paid time off (PTO), which is an allotted amount of paid time that may be used for vacation, sick days, or personal time at their discretion. A leave of absence, on the other hand, provides an employee with time off from work for an extended period due to certain circumstances.
Some employers may also supplement their legal obligations to provide employee leave by offering additional leave benefits to help with recruiting and worker engagement.
Types of Leaves of Absence
Employees may be entitled to a leave of absence under federal, state, and/or local law, or it may be offered voluntarily by an employer. Depending on the type, it may be time away from work that's paid or unpaid.
Protected Leave of Absence
The primary federal laws that impact leaves of absence and ensure job protection for employees while on leave are:
- The Family Medical Leave Act (FMLA)
- The Uniformed Services Employment and Reemployment Rights Act (USERRA)
The FMLA provides up to 12 weeks of unpaid time off as well as job protection and continuation of group health coverage within a 12-month period for an employee to:
- Care for a newborn, adopted, or foster child
- Care for a family member with a serious health condition
- Attend to the employee's own serious health condition
- Take military family leave
Paid leave provided by the employer can run concurrently with unpaid FMLA leave. Jurisdictions with paid leave programs generally allow eligible workers to take leave and receive partial wage replacement equal to a set percentage of their pay.
The FMLA includes specific military family leave entitlements. For example, an employee may be entitled to 26 work weeks of military caregiver leave during a single 12-month period to care for a covered service member with a severe injury or illness if the eligible employee is the service member's spouse, son, daughter, parent, or next of kin. Some state and local governments also have additional regulations surrounding military-related leave.
Under USERRA, employers are legally required to provide an unpaid leave of absence during an employee's military service. It also ensures that they can maintain health insurance coverage during this time.
Additional instances where you may be required to provide employees with time away from work include:
- Jury duty: There can be many discrepancies at the federal, state, and local level, but generally, time off to serve on a jury is required by law in most jurisdictions. All employers must provide unpaid leave to employees serving as jurors in federal courts. Some state laws require employers to pay employees who are asked to serve. Jury duty leave may also be regulated at the city or county level. Refer to your state or locality for additional information on applicable laws related to jury duty service.
- Disability accommodation: As enforced by the U.S. Equal Employment Opportunity Commission (EEOC), the ADA prohibits discrimination on the basis of disability in employment and requires that covered employers provide reasonable accommodations to applicants and employees with disabilities. Reasonable accommodations could include making modifications to existing leave policies and providing a leave of absence when needed for a disability, even where an employer does not offer leave to other employees. The amount of leave that may be appropriate as a reasonable accommodation typically depends on the job and disability. Employees on disability leave may also request reasonable accommodation upon return to work, whether it's a change in the workplace, work schedule, job structure, or workplace equipment.
Voluntary Leave of Absence
A voluntary leave of absence can be classified as an employee benefit or courtesy provided at the employer's discretion. It's generally up to the employer to create a policy that specifically outlines rules for taking time away, eligible circumstances for leave, job and benefits protection, and other criteria. It's in a business's best interest to ensure company policies and employee handbooks are clearly defined, legally reviewed, and up to date with specific voluntary leave guidelines, including who does and does not qualify.
Employers typically offer a voluntary leave of absence for personal and medical reasons to employees who have exhausted all their time off, such as sick leave and PTO, and to those who don't otherwise qualify for mandated leave(s). It's common practice to require employees to give reasonable notice when requesting a voluntary leave of absence, or at least as soon as possible. An employer has the right to deny voluntary leave requests that don't follow company policy.
A few examples of a voluntary leave of absence examples that an employer may consider providing unless already required by law include:
- Paid parental leave or sick leave
- Sabbatical leave
- Bereavement leave
- Extended time away from work for educational purposes
How Does a Leave of Absence Work?
Documenting and clearly communicating the steps for taking a leave of absence (well before anyone requests time away) is an effective way to help you and your employees stay on the same page. A written policy may cover:
- Eligibility requirements for taking a leave of absence (e.g., are part-time employees able to take a leave of absence?).
- Circumstances under which employees may be granted time away.
- The process for requesting leave.
- The amount of advance notice an employee should provide (unless there are unforeseeable circumstances).
- Any documentation the employee must provide when taking leave (e.g., a note from a health professional to take medical leave). Make sure to review any applicable laws about asking for documentation.
What Are the Qualifying Reasons for Taking a Leave of Absence?
To qualify for a job-protected leave of absence, employees must meet the criteria stipulated in the applicable law. For example, a medical leave of absence covered under FMLA requires that an employee work at least 1,250 hours during the 12-month period preceding the leave. To qualify for a military leave of absence, employees must be either inactive or active members of the United States military and provide written or verbal notice to their employer.
In contrast, the employer sets the qualifying criteria for a voluntary leave of absence and should develop policies and enforce the rules around taking time away.
Can Employers Deny a Leave of Absence Request?
Eligible employees who meet the qualifying criteria and work for a covered employer, where federal, state, and/or local law dictates, cannot typically be denied a leave of absence. However, there are exceptions.
Denying a Leave of Absence Request
There may be circumstances where you as the employer may be able to deny a leave of absence request. Under federal FMLA, for example, leave may be denied if the employee qualifications or the reason for leave do not meet the eligibility requirements set forth under the FMLA. Employers should not retaliate against an employee for requesting leave under the FMLA or other protected leave.
Granting voluntary leave that isn't covered under federal, state, or local law is at the employer's discretion. However, consistently applying your policies when approving or denying leave requests is a best practice that can help protect employers from claims of discrimination.
How Long Can an Employee Take a Leave of Absence From Work?
Leave of absence length depends on whether the time away is protected under federal, state, and/or local law, and the employer's policy. Job-protected leave under the FMLA, for instance, allows employees to take up to 12 weeks off without pay within a 12-month period. Employers are also required to allow employees to keep their healthcare benefits for those 12 weeks on the same basis that coverage would have been provided if the employee had been continuously employed during the entire leave period. Once a particular leave is exhausted, note that additional time off may be granted under other applicable laws, such as disability accommodation laws.
If you choose to approve voluntary leave, make sure to specify the expected return to work date, whether some or all that time is paid, and process for the transition back to work (e.g., returning part-time or full-time).
Tips for Creating and Managing a Leave of Absence Policy
To help you plan and respond to leave of absence requests in a way that is objective and consistent, consider the following.
Communicate, Post, and Be Consistent With Your Leave of Absence Policies
There may be times when an employee will mention in their leave of absence request that they read something in the employee handbook, but they're not sure if it still applies. In some cases, they may be working off something they have heard from other employees. Both situations beg the following questions:
- Is your employee handbook up to date?
- Have you clearly spelled out various policies and procedures related to leaves of absence?
- Have there been cases at your workplace where managers provided leave that went beyond, or conflicted with your policy?
Some employees will go to managers first to find out the steps they need to take to request a leave of absence. For this reason, make sure managers understand your policies and communicate consistently with how they are written.
If required, you should post notices regarding applicable leave laws. For example, the FMLA poster must be displayed in plain view where all employees and applicants can readily see it. If a significant portion of an employer's employees do not read and write English, the employer must provide the poster in a language in which the employees can read and write. The FMLA also requires covered employers to provide a general notice about the FMLA in employee handbooks and policy manuals if they have one. If they don't have a handbook, they must distribute a general notice to new employees upon hire.
Listen to What Employees Say, and Let Their Words Help Guide Your Decisions
Employees may not always ask for leave directly. Sometimes, your employees will make certain statements or communicate key phrases that can prompt you to seek further clarification. For instance, if an employee mentions a health condition — either their own, or that of a family member — you may need to inquire further to determine which leave(s) may be applicable.
A few examples of considerations related to seeking more information:
- Is the need for leave due to a workplace injury? If so, there may be workers' compensation implications.
- Does the employee need time off to care for a family member? FMLA or other federal, state, or local laws may apply.
- Is the need for leave sporadic? Intermittent leave may be appropriate.
Write As Much Down As Possible
As an employer, you want to be mindful when it comes to stating the terms and conditions of any leave of absence.
With this in mind, be sure to document your process, including all communications with the employee, when it comes to leave of absence requests and decisions. You may also want to get employees to acknowledge in writing that they understand any final decisions.
When dealing with leave of absence requests — especially when you are trying to coordinate multiple leaves of absence — communication and consistency are key. Just one employee lawsuit, or even the threat of a lawsuit, over a leave of absence issue can cause considerable damage to your employer brand, especially in a competitive hiring environment.
Ensure Your Leave of Absence Policy Meets Your Company's Needs
There are many considerations surrounding employee time away from the workplace, and staying in compliance with these laws is critical. You can minimize the risk of an FMLA violation or other compliance violation with the help of regular, comprehensive manager training, accurate time and attendance tracking, and thorough HR management tools. And if you're considering augmenting your employee benefits offerings to improve recruiting and retention, voluntary leave policies may be a great way to demonstrate your dedication and support for your workforce.