HR Management & Compliance

Leave Laws: How Do We Stay Out of Trouble When Employees Repeatedly Ask Us for Leave?

Do you have any general suggestions for dealing with employees who request leaves often? Particularly the difficult ones we’d like to get rid of anyway? We really don’t want to get nailed for unfairly denying leave, especially if our reasons are valid. Thanks.Anonymous in Anaheim


Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.


There are three ways that employers create problems for themselves, or do not put themselves in the best position to effectively manage seemingly excessive or unwarranted leaves. Here are three tips for minimizing claims and maximizing an employer’s ability to manage leaves.

 

  1. Don’t use leave situations as “gotchas.” When making decisions about an employee’s leave requests, avoid the “gotchas” or short cuts. Leaves can be frustrating, both because the laws are complicated and an absent employee can be a drain on an employer’s business. However, treat the employee as you would your best employee and train your supervisors (and yourself) to be patient. Courts will not look kindly on employers trying to get out of a leave obligation on a technicality. It is also risky to use leave issues as a convenient way to terminate an employee whose poor performance has not been addressed.
  2. Diligently document absences and the reasons for them. This is the best strategy for managing leaves so that: a) employees take the appropriate amount of leave time, b) employees who take advantage of the leave laws can be identified, and c) those with attendance problems may be coached. It is particularly important, in the case of intermittent leave, for managers to ask the reason why an employee is late or absent and to document it.
  3. Create a multi-layered defense. Employers should be wary of denying leave on the basis that an employee does not have a “serious health condition” or a “disability.” If the employee challenges the decision, the employer has only one defense. Moreover, it will not know if it is correct or not until a judge or jury makes such a decision. If an employer plans to deny leave because the claimed condition is not “qualifying,” it is wise also to analyze the other factors and document why, even if the condition were qualifying, the employee would still not be entitled to leave—this creates a multi-layered defense. Employers should also be cautious about denying leave on the basis that it is “unreasonable” (in the case where FMLA is exhausted) or an “undue hardship,” which may expose an employer’s financial condition to discovery in any lawsuit that may be filed alleging wrongful discharge. It is often better to approve some limited amount of leave and then document the ways in which having the employee absent created hardship on the employer.

John P. LeCrone is a partner at the Los Angeles office of law firm Davis Wright Tremaine, LLP.