Employee Leave Rights – Road to Tread Carefully
Many laws govern the workplace. One of them is protected period of absence for employee. Entrepreneurs can benefit or suffer basis their outlook towards employee leave entitlement.
Recent news caught my attention while browsing the Internet for employee leave rights at workplace.
It had to do with sick pay entitlement and its repercussions on the employees’ status of employment.
An employee who handled outside sales for a firm had availed FMLA leave for his CT scan, stress test and surgery for cardiac blockage.
The employee sued the firm and won the case as FMLA clauses were in his favor
On returning to work, he was shocked to find out that not only he was labeled as a poor performer in the appraisal cycle (despite of achieving the sales target) but also was given a forced choice to accept some lesser role or get fired.
The employee sued the firm and won the case as FMLA clauses were in his favor.
This made me explore the subject of employee leave rights from the employers’ perspective, as in the above case the firm did a very clumsy job of managing this leave type.
What is the Employee Leave Rights Scenario Around the World?
Most countries around the world have labor laws that mandate employers give a certain number of paid time-off days per year to workers as annual leave.
Nearly every Canadian province requires at least two weeks; in the European Union the countries can set freely the minimum, but it has to be at least 20 days (not including national holidays).
Full-time employment in Australia requires twenty annual leave days a year.
US law does not require employers to grant any holiday entitlement, and about 25% of all employees receive no paid vacation time or paid holidays.
US law does not require employers to grant any holiday entitlement
However, US does have Family and Medical Leave Act (FMLA) that requires covered employers to provide employees job-protected and 12 weeks of unpaid leave for qualified medical and family reasons.
Qualified medical and family reasons include: personal or family illness, family military leave, pregnancy, adoption, or the foster care placement of a child.
It’s no wonder then in US where employee leave is seen as perk rather than right, FMLA has been used more than 100 million times since its enactment.
Employee Leave Rights From Employers’ Lens – Possible Interpretations
The Focus on Eligibility
Extended leave under a law like FMLA is a big plus for the employee, hence the employers closely examine the eligibility clause where only those employees who have worked for the employer 12 months prior to requesting leave are covered.
And they must also have worked at least 1,250 hours in those 12 months.
The company must also be eligible to let its employee use the privilege, which means it must have at least 50 employees who work within 75 miles of its location.
Eligibility acts as a prime filter for deciding the leave provision mechanism.
Juxtaposition with Paid Leaves
Progressive employers, who don’t want their employees to suffer financial loss immediately, mandate the use of paid leaves before using any unpaid extended leave advantage.
An employer can easily calculate annual leave consumption and balance for each employee before getting into the web of laws like FMLA.
For the employer, it also cuts down on the legal paperwork effort.
Location Wise Exemptions and Non-exemptions
For many employment laws, there are central and state prescriptions that are to be considered by the employer.
He needs to align the work structure and documentation in line with the requirements of that state.
For instance, paid sick leave isn’t mandated in US, but the city of San Francisco requires employers within its boundaries to provide employee time-off for sickness, taking care of family members or when they have been victims of domestic violence.
The city of San Francisco requires employers within its boundaries to provide employee time-off for sickness
Additionally, employers also should check their state’s workers’ comp laws to determine what sort of employee leave is required.
Proofs and Record Keeping
If the employee is proceeding on an extended leave, the employers should seek certification or proof on the reason of leave, albeit in a responsible and sensitive manner.
An employer may also contact employees’ health care provider for authentication or clarification within prescribed limits of certification details.
The employers should seek certification or proof on the reason of leave
Also, certain paid leave benefits require records of employees’ sickness absence in order to calculate the payout or to address any dispute over payment like in the case of Statutory Sick Pay (SSP) where clear tracking of waiting days and qualifying days is to be maintained by the employer.
Under ideal conditions, the employer should evaluate an employees’ performance as though they were not on paid/unpaid leave of absence, with objectivity and fairness.
However, the evaluation should not include the employee’s time of absence because it can reflect negatively on employees’ performance or opportunities for promotion.
HR best practices advise the evaluation to be based on the proportionate amount of time the employee had to meet his performance expectations.
When an employee returns from extended and authorized leave, he/she must be restored to the job they had prior to leave or a job with equivalent pay, comparable duties and working conditions.
It would be unlawful for an employer to put the employee in a lesser job or reduce the pay on account of leave.
That could be interpreted as a penalty, demotion or an employment action similar to an employee whose performance did not meet the employer’s expectations.
The loose ends in this process can be tied with solid HR Software
Employers have evolved from looking at employees’ leave rights as logistic difficulty and financial loss to viewing it as an opportunity to uphold the morale and engagement of its workforce.
The loose ends in this process can be tied with solid HR Software that can create a culture of responsible absence from work by tracking, reporting and managing employee leave benefits.
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