Absence Management: What It Means for Employers

What it means in practice

Several legal regimes can apply to one absence at the same time, each with its own coverage test, notices, pay rules and records. The core employer tasks are deciding which rules apply, giving the required notices, counting leave correctly, coordinating overlapping leave and keeping records. A separate absenteeism policy sets attendance expectations and consequences for unexcused absences; absence management is the broader process that identifies protected leave before any attendance rule is applied.

The main regimes. The Family and Medical Leave Act (FMLA) gives eligible employees of covered employers unpaid, job-protected leave for qualifying family and medical reasons and requires continuation of group health benefits under the same terms as if the employee had not taken leave (DOL Wage and Hour Division). The Americans with Disabilities Act (ADA) can require leave as a reasonable accommodation. USERRA protects the jobs of employees who leave for service in the uniformed services. State and local laws add paid sick leave and, in some states, paid family and medical leave. Workers' compensation covers absences from work injuries. On top of these sit the employer's own paid time off (PTO), sick leave and disability leave plans.

Step 1: recognize a possibly protected absence. An employee asking for FMLA leave the first time need not mention the FMLA, but must give enough information for the employer to judge whether it may apply. Calling in "sick" without more is not enough notice, and the employer is expected to get further information by informal means; the employee must answer reasonable questions (29 CFR 825.303(b)). For foreseeable leave, such as a planned surgery, the employee generally gives at least 30 days' notice, or as soon as practicable, which usually means the same or next business day (29 CFR 825.302). For unforeseeable leave, the employee generally must follow the employer's usual call-in rules, absent unusual circumstances such as emergency treatment (29 CFR 825.303(c)). The EEOC says that when an employee asks for leave, or more leave, for a medical condition, the employer must treat it as a request for reasonable accommodation under the ADA, though it may grant the leave under its own leave program, the FMLA or workers' compensation if one of them covers it.

Step 2: notices. When an employee asks for FMLA leave, or the employer learns the leave may be FMLA-qualifying, the employer must give an eligibility notice within five business days, absent extenuating circumstances; if the employee is not eligible, the notice must give at least one reason (29 CFR 825.300(b)). A written rights and responsibilities notice goes with it, covering items such as certification, paid leave substitution and premiums (29 CFR 825.300(c)). Optional Form WH-381 may be used. Once the employer has enough information, often after receiving a certification, it must issue a written designation notice within five business days saying whether the leave will count as FMLA leave and, if known, how many hours, days or weeks will be counted (29 CFR 825.300(d)). Covered employers must also post the general FMLA notice even if no one is eligible (29 CFR 825.300(a)).

Step 3: certification. An employer may require medical certification for leave for the employee's or a family member's serious health condition. The employer should generally ask within five business days of the notice of need for leave (or after unforeseen leave begins), and the employee has 15 calendar days to return it. If a certification is incomplete or insufficient, the employer must say in writing what is missing and allow seven calendar days to cure it (29 CFR 825.305).

Step 4: count the leave. The employer chooses how to measure the FMLA 12-month period: calendar year, a fixed leave year, a period measured forward from the first leave, or a rolling period measured backward. If it fails to choose, the method most beneficial to the employee is used (29 CFR 825.200). Intermittent leave is taken in separate blocks for one qualifying reason, and a reduced schedule cuts usual hours (29 CFR 825.202). Only leave actually taken is counted, and the employee's actual workweek is the basis (29 CFR 825.205(b)). Employees must make a reasonable effort to schedule planned treatment so as not to disrupt operations unduly (29 CFR 825.203).

Example: counting intermittent leave. The regulations' examples: an employee who normally works 40 hours a week and takes 8 hours off uses one-fifth of a week of FMLA leave; an employee who normally works 30 hours and moves to 20 hours uses one-third of a week each week; and an employee normally required to work 48 hours who can work only 40 uses one-sixth of a week. Voluntary overtime missed for an FMLA reason may not be counted (29 CFR 825.205). As our illustration, for a 40-hour employee the 12-week entitlement equals 480 hours, so 8 hours a week would take 60 weeks to use up. Leave is counted in increments no larger than the smallest used for other leave, and never over one hour (29 CFR 825.205(a)).

Step 5: coordinate overlapping leave. FMLA leave is generally unpaid. An employee may choose, or the employer may require, to substitute accrued paid leave so it runs at the same time as FMLA leave, subject to the normal terms of the paid leave policy, and the employer must say so in its notices. Paid sick leave used for a condition that is not a serious health condition does not count against FMLA (29 CFR 825.207). Leave under a disability plan that meets the serious health condition test can be designated and counted as FMLA leave; because it is paid, substitution does not apply, though the parties may agree, where state law permits, to use paid leave to top up the benefit (29 CFR 825.207(d)). The FMLA regulations say an employer must provide leave under whichever law gives the employee greater rights, and that an ADA "disability" and an FMLA "serious health condition" are different concepts analyzed separately (29 CFR 825.702).

Workers' compensation and FMLA. A work-injury absence that is also a serious health condition can run concurrently with FMLA leave if the employer gives proper notice and designation. An employee released to light duty may decline it, possibly losing workers' compensation payments, but stays on unpaid FMLA leave until able to return to the same or an equivalent job or until the entitlement is exhausted. Once workers' compensation benefits stop, accrued paid leave can be substituted (29 CFR 825.207(e) and 825.702(d)).

ADA leave beyond the limits. The EEOC says employees with disabilities must get access to leave on the same terms as others; a uniform doctor's note rule is allowed, but not one imposed only on them. An employer must consider unpaid leave as a reasonable accommodation, absent undue hardship, even when it offers no leave benefit, the employee is not yet eligible, or the employee has used up FMLA, workers' compensation or policy leave; paid leave beyond the policy is not required. In the EEOC's example, an employee who uses all 12 weeks of FMLA leave and needs five more weeks must get them unless the employer shows undue hardship, and exceeding the FMLA amount alone is not undue hardship. The EEOC also says maximum leave and "no-fault" attendance limits may need to be modified as an accommodation, and that "100 percent healed" return-to-work rules can violate the ADA. Unlike the FMLA, the ADA does not require health coverage during leave unless others on similar leave get it (29 CFR 825.702(b)).

Military leave under USERRA. The employee or an appropriate officer must notify the employer before service, verbally or in writing, with no set format (20 CFR 1002.85). The employee may ask to use accrued vacation or similar paid leave, but the employer may not require it (20 CFR 1002.153). Health coverage can be continued for up to 24 months, and for service of 31 days or more the employee may be charged up to 102% of the full premium (20 CFR 1002.164 and 1002.166). Reemployment rights generally last through a cumulative five years of service (20 CFR 1002.99). After service of less than 31 days the employee reports back at the next full scheduled work period after safe travel home plus eight hours; after 31 to 180 days the employee applies within 14 days; after more than 180 days, within 90 days (20 CFR 1002.115). Reemployment must generally occur within two weeks of the application (20 CFR 1002.181). Months and hours the employee would have worked during service count toward FMLA eligibility (29 CFR 825.702(g)).

Exempt employees and partial-day absences. An exempt employee generally must get the full salary for any week in which any work is done (29 CFR 541.602(a)). Allowed deductions include full-day absences for personal reasons, full-day sickness absences under a bona fide sick leave or disability plan, and unpaid FMLA leave, which may be prorated. The regulation's FMLA example: a 40-hour employee who takes 4 hours of unpaid FMLA leave may have 10 percent of that week's salary deducted, which on our illustrative $1,500 weekly salary is $150. For a personal absence of one and a half days, only the one full day may be deducted. Jury duty and temporary military leave cannot be deducted, but jury fees or military pay received for the week may be offset (29 CFR 541.602(b)). See exempt vs. non-exempt employees.

Where states differ (examples). State paid sick leave laws set their own accrual, use and documentation rules. The Washington Department of Labor & Industries says employers must provide at least 1 hour of paid sick leave per 40 hours worked, allow use no more than 90 days after hire, carry over unused balances of 40 hours or less, notify employees of their rights by the first day of work, and have a written policy if they require verification for absences longer than three days. Oregon's Bureau of Labor and Industries says employees earn at least 1 hour per 30 hours worked, up to 40 hours a year; sick time is paid where the employer has 10 or more Oregon employees (6 or more with a Portland location); use may begin after 90 days; employers must report balances in writing at least every three months; and a doctor's note generally may not be required for absences under three consecutive workdays. Other states and cities differ. See accruals.

Recordkeeping. Covered employers with eligible employees must keep basic payroll data, dates of FMLA leave, hours of leave taken in less than full days, copies of written employee notices and employer notices, leave policy documents, benefit premium payments, and records of any dispute over designation, for at least three years, in no particular form (29 CFR 825.500(b) and (c)). Leave designated as FMLA leave in the records may not include leave required only by state law or an employer plan that the FMLA does not also cover. Certifications and medical histories must be kept as confidential medical records separate from personnel files, as the ADA also requires for medical information (29 CFR 825.500(g) and 1630.14(c)(1)).

Questions employers ask. Can we designate FMLA leave after the fact? Yes, with proper notice, if the late designation does not harm the employee, or by mutual agreement (29 CFR 825.301(d)). Can we ask for status updates? The FMLA allows a nondiscriminatory policy of periodic reports on status and intent to return (29 CFR 825.311). For ADA leave with a fixed return date, the EEOC says an employer may not ask for periodic updates but may check on the employee's progress. Can we require a fitness-for-duty certification? Under the FMLA, notice of the requirement goes with the designation notice (29 CFR 825.300(d)(3)), and it must meet the ADA rule that a fitness-for-duty exam be job-related and consistent with business necessity (29 CFR 825.702(e)).

This entry summarizes federal rules and two state examples; confirm specifics with the Department of Labor, the EEOC, your state labor agency or a qualified professional.

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