Leaves of Absence

An employer’s first obligation is to know that the leave mandate exists, of course. An employer has to also understand the legal requirements for notifying employees about their right to take that leave – that is, must the employer post a notice or provide the employee with a state-mandated pamphlet, or is it sufficient to discuss the leave in the employee handbook?

An employer has to know how to respond to an employee’s request for the leave – for example, can the employer ask for a doctor’s note or other documentation? Should communications with the employee be formal and in writing? If the employee requesting leave has a disability, is the employee’s request “reasonable” or does it impose “undue hardship” on the employer?

An employer has to know what it can legally do during the employee’s leave – that is, can the employer communicate with the employee? Does the employer have to leave the employee’s job open, or can the employer hire either a temporary or permanent replacement for the absent employee? How does the employer stay informed of the employee’s plans for returning to work?

And, an employer has to know what to do at the conclusion of the leave period. If the employee does not return, can the employer recover from the employee the cost of health insurance and other benefits paid for by the employer during the employee’s absence? If the employee wishes to return, does the employer have to return the employee to their previous position? What if that position no longer exists – then what? If the employee wishes to return but has some new limitations on their ability to work, how does the employer navigate the “interactive process” to ensure the employee is able to work safely?

The answers to all of these questions are found in the bewildering maze of employee leave of absence laws. These laws emanate from all levels of government. – tThere are city-mandated leave laws, county-mandated leave laws, state-mandated leave laws, and federal-mandated leave laws. An employer has to know about, and follow, developments at each level of government to ensure that the employer is staying compliant and offering all of the mandatory leaves to its employee.

To make matters even more complicated, one employee with one situation can be covered by multiple leave laws emanating from multiple levels of government. For example, an employee in San Francisco who is out with the flu could be eligible for leave under some or all of the following: paid leave under San Francisco’s paid sick leave law (“SF-PSL”); paid leave under California’s paid sick leave law (“CA-PSL”); unpaid leave under California’s Family Rights Act (“CFRA”); unpaid leave under California’s Fair Employment & Housing Act (“FEHA”); unpaid leave under the federal Family and Medical Leave Act (“FMLA”); unpaid leave under the federal Americans with Disabilities Act (“ADA”); and paid leave under the employer’s Paid Time Off (“PTO”) policy. To properly and legally respond to this employee’s leave request, an employer would need to be familiar with each and every one of these various laws.

Workplace Legal attorneys are experts at helping employers navigate this maze of local, state, and federal employee leave laws. In our Counseling & Preventive Advice practice, Workplace Legal regularly advises employers at all stages of the leave process – from how to legally respond to an employee’s leave request to whether and how to engage in the “interactive process” to how to evaluate an employee’s requested accommodations. We also advise employers on how to legally recruit for and staff an employee’s position during their absence.

Attorneys in our Employment Litigation & Trials practice defend employers who are being sued by employees for allegedly failing to comply with the leave law requirements. We’ve litigated cases in state and federal courts involving virtually every type of leave law on the books, including sick leave, pregnancy leave, family leave, medical leave, disability leave, and PTO leave.