In the workplace, this is the day and age of recognizing the value of employees, creating work/life balance, and branding companies for the purpose of attracting potential employees in a society with low unemployment rates. Outside of typical paid time off benefits such as vacation days, sick leave benefits, personal days, holidays, bereavement leave, time off to vote, and jury duty or witness duty leave, creating a personal leave of absence policy may be an additional way to enhance employee benefits.
There are certain leaves of absences that are required by federal law including workers’ compensation, military leave, and for most companies who have more than 50 employees within a 75-mile radius of their property, the Family and Medical Leave Act (FMLA). More and more states also have additional laws requiring companies to provide leaves such as paid family and medical leaves, paid sick leaves, parental leaves for the birth, adoption, or fostering of a child, military family leaves, organ donor leaves, and domestic violence leaves. Several states have enacted small necessities leave laws that usually are for shorter durations and address family obligations that aren’t covered under the FMLA such as attending school events for employees with school-aged children. Sometimes the small necessities leave also addresses the needs of domestic violence victims or their caregivers to obtain medical help when needed, consult with attorneys, or participate in court cases related to their situations.
Beyond these federal and state laws, employers can determine whether they will provide their employees with additional paid or unpaid leave time. Short-term and long-term disability insurance are popular benefits which may be paid by employers, or offered through a voluntary benefits program that is paid by the employee. These cover health-related concerns for their employees, however, and do not apply to family members.
A leave of absence, whether paid or unpaid, is a benefit to employees for multiple reasons and, despite the complications and administrative work it may create, it is also a benefit to the employer. A leave of absence policy demonstrates to employees that the company cares about them holistically. As a part of a larger benefits package, it has the ability to boost employee engagement and ensure that employees who are working have had the care that they need so they may focus on their work during working hours. Large or small, companies are to be commended for implementing creative ways to recognize the value of employees through benefits such as leave of absence policies.
Most employers, faced with the ever-increasing need to be aware of employment practices that could have a discriminatory effect, recognize that leave of absence policies, although well-intended, have the potential to be discriminatory if the policies are not applied equally and fairly to all employees, or if an employee who is in a protected class is treated differently when they have requested a reasonable accommodation from the company. Many employers have also begun to understand the danger of offering restricted leave policies to specific groups of employees. An example of this is offering maternity leave to women but not offering paternity leave to men. However, the question remains whether employers recognize other less visible aspects of a specific leave of absence policy that could be considered discriminatory against employees?
It is illegal for an employer to discriminate against an employee in the payment of wages or employee benefits on the basis of race, color, religion, sex (pregnancy, gender identity, and sexual orientation), national origin, age (40 and over), disability, genetic information as referenced in the Genetic Information Nondiscrimination Act (GINA), military service veteran status, or any other characteristic protected by federal, state and local laws. This definition is based on federal laws and regulations such as Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, the Pregnancy Discrimination Act of 1978, the Immigration Reform and Control Act of 1986, the Americans with Disabilities Act and its Amendments Acts (ADAAA) of 1990 and 2008, Executive Order 11246 of 1965, the Family and Medical Leave Act of 1993, and the Uniformed Services Employment and Reemployment Rights Act of 1994.
Beyond the federal laws and regulations listed above, many states have additional classes of people protected from discrimination for multiple other factors such as marital status, sickle-cell trait, and marijuana use, to name a few. Due to these various federal and state laws, a leave of absence from employment may be required by law as a reasonable accommodation for an employee from a protected class such as an employee with a disability, an employee who has a sincere religious belief, an employee who is pregnant, for caregivers and those with family responsibilities, or even for an employee with a protected chronic illness or disorder such as sickle-cell anemia.
Employers are realizing that providing unpaid leave to an employee with a disability is necessary even when the disability is not visible to the employer. The purpose of leave as a reasonable accommodation is to enable an employee to return to work following the period of leave with the ability to complete the essential duties and functions of their job. Most employers understand that they are obligated, short of creating an undue hardship on the company, to provide employees with disabilities access to any leave policy on equal terms as other similarly situated employees. However, the employer must also consider providing unpaid leave to an employee even if the employer does not offer leave as an employee benefit, or if the employee is not eligible for leave under the employer’s policy, or if the employee has already used the maximum allotted leave time that the employer provides as a benefit. This may occur when a part-time employee needs to take leave even if the company leave policy is for full-time employees only. It also may be necessary to provide leave to a new employee even though the leave policy states that employees aren’t eligible until after 90-days of employment.
While there is a higher standard of adherence to reasonable accommodation for employees with disabilities, religious accommodation is also protected by law. According to the Equal Employment Opportunity Commission (EEOC), “Religious discrimination involves treating an employee unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.” (https://www.eeoc.gov/laws/types/religion.cfm) This is true for any employment practice including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. The use of extended leaves of absence to accommodate an employee’s religious beliefs is not a recent issue. In 2011, the Department of Justice set the standard for this accommodation when it “settled a religious discrimination case against an Illinois school district, after the school district refused to grant a Muslim employee’s request for a 19-day leave of absence to perform Hajj, a religious pilgrimage.” (Leaves of Absence as Religious Accommodation, Martha Zackin, October 18, 2011)
Many employers don’t understand the significance of religious leave as a reasonable accommodation for employees. An employer must take into serious consideration requests for accommodation of a religious belief or practice but they may not be required by law to grant every request. If the employer has a genuine suspicion of an employee’s sincere belief, they may make a reasonable investigation into the employee’s true intentions. However, the EEOC warns employers that it’s important not to assume that an employee is insincere either because the employee’s religious beliefs are relatively new, or if their practices differ from commonly known rules or beliefs of their religion.
Pregnant women are also considered a protected class and eligible for reasonable accommodation, including a leave of absence. Under the Pregnancy Discrimination Act (PDA), an employer that allows temporarily disabled employees to take disability leave with or without pay, must allow an employee who is temporarily disabled due to pregnancy to do the same. Therefore, if a company has a personal leave policy of any type, they may not discriminate against a pregnant employee by refusing to accommodate that employee when a request is submitted.
Another type of discrimination is that is covered by laws in multiple states is called either caregiver discrimination, or family responsibilities discrimination. It is based on the premise that employees have either real or perceived responsibilities to care for their family members and should not be discriminated against because of their personal responsibilities outside of the company. Therefore, companies in those states must comply with the parameters of the state laws in order not to be discriminatory.
The reality is that an employer may be discriminating, however their actions may not be perceived as being discriminatory. If a company implements a parental leave policy for the birth or adoption of a child and an employee needs time off for another reason, that employee could potentially file a discrimination lawsuit against the company if the employee is in a protected class, such as over the age of forty. It would be discriminatory for the company not to provide the employee with the time off when they provide time off for parental leave for other employees. Consider a situation where the employee needs to take time off to care for a spouse who is recovering from open heart surgery. The employee’s time off would not be considered under a short-term disability leave with any insurance carrier, as the employee is not the one with the medical condition. The company may not want to extend their parental leave policy to those who don’t have a need for parental leave, but they really don’t have a choice, unless the company wants to open itself up to potential legal action in the future.
On the surface, it could be easy to dismiss the ramifications of creating a leave policy that potentially would have a discriminatory effect on employees. Below are some questions companies may want to ask as they consider writing a leave policy, or are in the middle of revising a current policy.
- Could this leave policy be used as a reasonable accommodation by a person in a protected class such as an employee with a disability or someone who may desire a religious accommodation?
- Is the leave policy worded in such a way that it would prevent a person with a hidden disability from making a request for leave as a reasonable accommodation?
- If the company has an employee who has a sincerely held moral belief as defined by the EEOC and wants to take an extended mission trip, would denying that leave be considered a religious discrimination?
- If a company offers a “maternity leave”, does the company also offer that same leave to fathers, or guardians, or foster parents? What happens to the employee who really wants to have children but can’t?
- Does this leave policy apply to an employee who is a single mother who has no one to help when her child is sick and is admitted to the hospital?
- Could a 45-year old employee claim age discrimination because a promotion was given to a younger employee while the 45-year old employee was on a leave of absence?
The question may be asked whether it is necessary to have multiple leave policies to encompass all of the possible federal and state laws regarding discrimination or whether a “catch-all” personal leave policy that on the surface would alleviate the possibility of discrimination could leave the company with not enough employees to maintain company operations. The good news is that companies may create a personal leave policy with healthy boundaries as long as they are open to assessing requests on a case-by-case basis. The policy may designate a leader, such as the President, or CEO, who has the sole discretion to approve or not approve any request for a personal leave under the terms of the policy.
When creating a personal leave policy, it’s vital to weigh other considerations when setting the parameters of the leave such as determining whether the leave policy is paid or unpaid, deciding whether employees should cover the full costs of benefits such as health insurance while they are on leave, and determining whether or not to stop the accrual of benefits such as paid time off and seniority.
While a company may be subject to the Family and Medical Leave Act guidelines, a company’s personal leave policy does not need to protect the employee’s job until their return. Most personal leave policies allow for an extension of time after the initial leave to provide a reasonable accommodation for those employees who may have a disability defined by the Americans with Disabilities Act and Its Amendments Act (ADAAA). However, the policy may state that if an employee does not return to work at the agreed-upon time, they will be considered to have voluntarily terminated their employment with the company.
Employers may determine whether it is a business necessity to deny a leave request. It’s important to understand the term “undue hardship” as it relates to personal leave. According to the Department of Labor’s website, “An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. Undue hardship also may be shown if the request for an accommodation violates the terms of a collective bargaining agreement or job rights established through a seniority system. Undue hardship based on cost requires that the agency show more than a de minimis (minimal impact upon the agency’s business) cost to the agency. The hardship upon the agency must be genuine and cannot be merely speculative.” (https://www.dol.gov/oasam/programs/crc/2011-Religious-Discrimination-and-Accommodation.htm) There is no one-size-fits-all determination for undue hardship and, over the years, the courts have set differing standards of undue hardship for requests under the Americans with Disabilities Act and its Amendments Act (ADAAA), and those set under Title VII of the Civil Rights Act of 1964.
This article would not be complete if it did not mention the consequences for any real or perceived retaliation against an employee in a protected class. Therefore, if an employee in a protected class requests leave as a reasonable accommodation, employers should be careful that there would be no comments or perceived retaliation by anyone. The key word is “perceived” because a supervisor could simply be expressing frustration such as, “we don’t have time for this” and the employee could consider the comment to be retaliatory.
Companies who offer any type of leave policy are to be commended for their demonstrable care of their employees. It is hoped that a leave policy that is intended to benefit employees doesn’t actually end up hurting the employees that it is intended to benefit. Therefore, it is recommended that if a company decides to offer any type of leave of absence policy for their employees, that it be generalized as a personal leave policy both for the protection of the employer and the protection of the employees. With a personal leave policy that is assessed on a case-by-case basis for the needs of the individual employee and whether a particular reasonable accommodation would cause undue hardship for the company, there is less chance for discrimination to occur.
Finally, employers are encouraged to respond without delay to leave requests and to utilize an interactive communication process, especially if the leave is in response to a reasonable accommodation due to a disability or is from a member of a protected class. If a prompt response is not possible, periodic updates should be provided to the employee on the status of their request.
For additional information on personal leave policies, please contact us at www.newfocushr.com.
Written by: Kathi Walker, PHR, SHRM-SCP
Sr. HR Consultant