Employees may need time off from work because of health and family concerns. The time period during which the employee is off from work is known as a leave of absence.The law may prohibit an employer from terminating an employee for taking a leave of absence.
What is the Definition of a Leave of Absence?
A “leave of absence” is an extended period of time (e.g., a few days, a week, a month) during which the employee is absent from work. The employee is absent because of a personal health condition, or that of a family member. Other reasons for taking a leave of absence include attending to a family death or emergency. In addition, employees may take a leave of absence when pregnant, and when caring for a newborn.
When Will an Employer Grant a Request for Leave of Absence?
Many employers provide an employment handbook to their employees when they start work. Employee handbooks or employment agreements contain provisions addressing time off from work. These provisions include employer sick leave (paid and unpaid) policies, vacation leave, and paid time off leave. These provisions are crafted by the company, as part of its employee benefits. Employers grant leave under the provisions of these policies.
In certain cases, federal or state law requires employers to grant employees a leave of absence. For example, many state laws require employers to provide employees with a certain amount of time off for illness or injury of the employee or that of a family member. These laws differ regarding the amount of leave that must be provided. The laws differ as to what size the employer must be to be covered by the leave. The laws also differ as to whether the leave is paid or unpaid.
Many of these laws provide that an employee who takes leave can return to their existing job.. Most of these laws contain anti-retaliation provisions, which prohibit an employer from retaliating against (firing, demoting or suspending) an employee who has requested or taken permitted leave.
What is the Family and Medical Leave Act?
The Family and Medical Leave Act, or FMLA, is a federal law requiring employers to provide employees with unpaid leave, for up to 12 weeks, in a 12-month period. Employers covered under the FMLA must continue to provide group health benefits to employees who take leave. Generally, an employee who takes FMLA leave is entitled to job restoration, which means the employee, when they return from leave, can go back to performing their existing position.
Does the Americans With Disabilities Act Require Granting a Taking a Leave of Absence?
The federal Americans With Disabilities Act (ADA) may prevent an employer from terminating a disabled employee for taking leave. For an employee to be protected by this law, the employee must be a “qualified individual with a disability.” That is, the employee must be able to perform the essential (major) functions of the job. The ADA requires employers to provide reasonable accommodations to these individuals.
A reasonable accommodation is a change in the work environment that better-enables a disabled employee to work. An example is an employer’s providing a stool to a clerk who, because of their disability, gets tired from standing for too long, but who can perform their job effectively by sitting.
A leave of absence can be a reasonable accommodation if it enables a worker to return to their position when leave is over. Under the ADA, an employer must grant unpaid leave unless another option is better, or if the leave causes the employer undue financial hardship. The ADA does not require employers to provide indefinite leave, which is leave with no expected return-to-work date.
Can I Be Fired for Taking a Leave of Absence?
If an employee does not work for an employer covered by state or federal leave laws or state or federal antidiscrimination laws, the employee may be subject to termination. An employer may terminate an employee not covered by these laws as part of a mass layoff.
The FMLA covers employers with 50 or more workers, in 20 or more weeks of work. The 20 weeks of work must be in the current or previous year. The FMLA does not allow certain employees to take leave. “Key employees” are those in the top 10% of the employer’s income earners. They may be denied their previous job upon return, if return constitutes substantial financial burden to the employer.
Do I Need the Help of a Lawyer With a Leave of Absence Issue?
If you need any advice on whether you are entitled to a leave of absence, you should contact an employment lawyer. An experienced employment lawyer near you can evaluate your case and advise you as to what options to pursue. The lawyer can also represent you in court proceedings.