Managing the Complex Web of Leave of Absence Laws
It Takes a Human Resources Professional
By Andria Ryan Partner, Fisher & Phillips LLP | March 09, 2014
Managing employee leave and staying on the right side of the law is challenging for employers, especially as federal and state laws continue to be enacted and interpretations of laws change and evolve. Hotel human resources teams must be prepared to recognize when and which law applies to an employee request for leave and manage the leave process. But they can't do their job if the employee's leave request is never brought to their attention or brought to them too late. Employers must train supervisors and managers to recognize requests for leave or attendance issues that may implicate federal laws such as the Americans with Disabilities Act, the Family and Medical Leave Act or state laws that provide for leave for a variety of absences such as school visitation, pregnancy or leave for crime victims, to name a few. Hospitality employers should address attendance and leave issues from a centralized decision-making perspective to ensure consistent application of, and possible modification of, relevant company policies.
The Federal Laws
There are generally four federal laws that may require some form of leave of absence for eligible employees – and your human resources team knows about them. The trouble is how to manage and track the time off and how to discipline or discharge an employee who is misusing the leave.
The Uniformed Services Employment and Reemployment Rights Act was enacted following the Persian Gulf War. The law's purpose was to expand the rights of employees returning to work from uniformed service by entitling them to positions with their pre-service employers, complete with all of the seniority, status, pay and benefits that they would have accrued had they never left. USERRA generally requires employers to provide eligible employees with up to five years of unpaid leave for uniformed service during the life of their employment. Throughout this period, the employee's seniority, health care and pension benefits must be maintained. Further, returning service members have a virtually unfettered right to reemployment by their pre-service employer upon timely application for return to work.
Under the federal Pregnancy Discrimination Act of 1978 (an amendment to Title VII of the Civil Rights Act), a pregnant employee may be entitled to time off for pregnancy and maternity-related issues on the same terms as those employees having other temporary disabilities.
The ADA provides numerous protections to disabled employees, including such accommodations as time off and extended leaves of absences. In 2012, the Equal Employment Opportunity Commission approved its Strategic Enforcement Plan for 2012-2016. In the plan, the EEOC stated five priority enforcement areas. One of the five areas includes reasonable accommodation under the Americans With Disabilities Act. And the agency is very serious about enforcing its priorities. The EEOC is vigorously pursuing employers for failing to modify their leave and attendance policies to accommodate disabled employees. Coupled with the time off obligations under the FMLA, it's no surprise that employers are frustrated and confused when trying to manage their employees' leaves and attendance issues.