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Executives on extended leave

We have recently went to a no PTO/Vacation accrual policy for our upper management staff. This means they have no need to track their time worked or request/report time off. When one of these employees goes on extended leave, what is the norm in how this is handled. FYI: We are mainly in CA, but we have upper management in other states as well.

It’s fairly common for companies to not track time worked or leave banks for executives since they’re ultimately held accountable for their performance by the CEO or Board of Directors. However, from a HR perspective, it’s important to track all employees’ time worked in order to determine eligibility for federal and state leave laws such as the Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA). Also, knowing when an employee is on or off company time can be useful in case of a workers’ compensation claim or an investigation regarding an allegation against the employee.

Tracking daily hours worked, sick time, and vacation time are very different than managing long term leaves. Employers should require any employee seeking a leave of absence to follow the same application procedure and submit the necessary, and in some cases legally required documentation whether it is for medical leave, jury duty leave, military leave, or personal leave. Tracking the frequency and duration of leave usage is required to ensure consistency with the leave requested and for documentation purposes.

An executive or upper manager may be given additional consideration when requesting extended leaves due to the nature of their job. Approving leave requests beyond the legally required time frames are often at the employer’s discretion based on the circumstances, critical nature of the employee’s position, and effect on company operations.

Uniformly applying and enforcing leave procedures ensures non-discriminatory procedures among all job classifications in the company. Remember to not only be aware of federal leave laws but also state leave laws in each of the states in which the company operates.

July 21st, 2014, 8:20 PM |  Posted in: Attendance Management, Benefits, Labor Laws |
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Insurance Arrears & Absences

As my company prefers to have a general policy on hand for most things and deal with employee issues on a case by case basis, we have been burned many times regarding employee portions of insurance premiums. We pay a portion of employee insurance plans as part of our package for employment. We continue to pay the company portion as well as the employee portion when an employee is out for a measurable length of time under FMLA, Workers Comp or Personal Leave. Employees that have been out of work on Workers Comp, FMLA or personal leaves of absence have ignored our reminders about keeping up their portion of premiums as stated in our handbook. Are there any rules or regulations regarding an employee being out of work for one of the above reasons and insurance cancellation due to non-payment? We would like to make this policy for our handbook.

Employees failing to pay for their portions of insurance premiums while on leave is fairly common due to their lack of knowledge or non-existence of applicable policies. Employers should adopt policies addressing the matter while ensuring compliance with federal and state laws regarding coverage cancellation.

Workers’ Compensation is a state-governed insurance program providing wage replacement benefits to employees who suffer job-related injuries and illnesses. Generally, workers’ comp does not guarantee an employee the continuation of group health insurance coverage. However, since the program is administered differently in each state, it’s best practice to ensure your state doesn’t require the employer to pay premiums while an employee is on workers’ comp. Keep in mind that employment agreements or union contracts may mandate the employer to pay insurance premiums while an employee is absent from work such as during worker’s comp leave. Additionally, if the employee is on workers’ comp and FMLA leave concurrently, the employer must adhere to FMLA guidelines regarding health insurance coverage.

The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take up to 12 workweeks of unpaid, job protected leave in a 12 month period for specified family and medical reasons. The Department of Labor Fact Sheet #28-A: Employee Protections under the Family and Medical Leave Act is very clear on the matters of insurance continuation and cancellation.

If an employee is provided group health insurance, the employee is entitled to the continuation of group health insurance coverage while on qualified FMLA leave on the same terms as if he continued to work. The same applies to both individual and family coverage. The employee must continue to make his normal contributions to the cost of the health care premiums.

If paid leave is used during FMLA leave, the employee must pay his share of the premiums in the same manner normally used during paid leave i.e. payroll deduction. If FMLA leave is unpaid, the employee must make arrangements to pay his portion of the premiums. If an employee’s premium payment is more than thirty days late, the employee’s coverage may be cancelled unless the employer has a policy or practice of allowing a longer grace period. The employer must provide written notice to the employee that the payment has not been received and allow fifteen days after the date of the letter before coverage is terminated.

Additionally, employers are permitted to recoup the employer’s share of the premium payment for an employee on FMLA leave if the employee fails to return to work after the leave. However, doing so is not permissible if the employee cannot return to work due to circumstances beyond his control such as a FMLA qualifying medical condition.

A point to remember is that even though an employer may cancel an employee’s health insurance coverage for failure to pay the premium while on FMLA leave, the cancellation is not considered a qualifying event under the Consolidated Omnibus Budget Reconciliation Act (COBRA). Thus, a COBRA notice would not be required. Upon return from leave, the employee must be reinstated to the group plan as if there were no interruptions in coverage.

A personal leave of absence is a benefit offered by employers permitting an employee to take time off from work for extenuating circumstances that are not covered by other benefits such as workers’ comp or FMLA. Since the benefit is not mandated by federal or state regulations, the employer is free to adopt a policy it deems suitable as long as it is applied in a non-discriminatory manner. Most companies choose to continue group health insurance coverage for an employee on a personal leave of absence. In doing so, it’s best practice to have a clear, easily understood policy stating how the premiums are to be paid, the due date for the premiums, and consequences for not paying the premium on time. Similar to the FMLA guidelines, an employee who has not paid his premium should be provided a written notice reminding him of the late payment and consequences of not paying the amount due in a specified time frame.

Implementing clear, easily understood policies for benefits continuation coverage while on workers’ comp, FMLA, or a personal leave absence will ensure employees are aware of both their rights and responsibilities under applicable laws and employer policies. Make sure to disseminate any new policies to all staff. Also, some employers provide copies of applicable policies when an employee applies for leave as a friendly reminder.

July 21st, 2014, 12:51 PM |  Posted in: Benefits, Labor Laws |
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FMLA – back dated

If an employee submits FMLA paperwork 4 months after the absences, is the employer required to approve? Also, what is considered a reasonable time frame for submitting FMLA requests for previous absences?

The federal Family and Medical Leave Act (FMLA) entitles covered, eligible employees to take unpaid, job-protected leave for specified family and medical reasons. Both employers and employees have responsibilities under the act.

Employers are responsible to provide employees with a general notice about the FMLA; notify employees concerning their eligibility status as well as their rights and responsibilities under the act; and notify employees whether a leave is designated as FMLA leave and the amount of time that will count against their total entitlement.

Employees must provide reasonable notice of the need for leave. Thirty days advance notice is required when the need for leave is foreseeable. When thirty days is not possible, employees must provide notice as soon as practical. Employees must also provide sufficient information in order for the employer to determine if the leave qualifies for protection under the FMLA. Employees must comply with requests for the time and duration of the leave as well as medical certifications, if necessary.

An employer may require that employees comply with the employer’s normal policies for requesting leave and may implement disciplinary action against an employee who fails to follow its policies or practices for requesting leave. Employers must ensure that such practice does not discriminate against employees taking FMLA leave. Additionally, the disciplinary practice must be uniformly applied.

Retroactive designations for FMLA leave are permissible and should be mutually agreed upon by both the employer and employee. Also, retroactive designations cannot cause harm to the employee. Unless the employee informed the employer either verbally or in writing of the need for FMLA leave four months ago, the employer has no legal requirement to retroactively designate absences as FMLA protected.

Employers must establish policies and provide notifications to employees regarding procedures for requesting leaves including time frames for providing notice of the need for leave. There is no industry standard for such a time frame. Cases must be evaluated on a per case basis. Adopting and uniformly applying policies is best practice.

July 16th, 2014, 9:17 PM |  Posted in: Human Resources Management |
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Mandatory Postings

Is there a company out there that an employer with multiple of out of state worksites can contract with to mail mandatory postings to all whenever there’s an update to them?

We’re affiliated with Labor Law Center which assists thousands of businesses with their compliance needs including mandatory federal and state labor law postings. They offer a compliance protection plan to help employers stay up to date with posting requirements by sending replacement posters whenever a mandatory revision occurs. You can visit the website at or call 1-800-745-9970.

July 16th, 2014, 8:20 PM |  Posted in: Human Resources Management |
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FMLA in Texas

After all 12 weeks of FMLA are used, is there another 6 weeks of bonding for a new born? The person in question had a c section.

Texas doesn’t have separate leave requirements for bonding with a child. Employers in Texas are subject to the federal Family and Medical Leave Act (FMLA).

The FMLA entitles covered, eligible employees to take unpaid, job-protected leave for specified family and medical reasons. Assuming the employee has worked for a covered employer for at least 12 months, has at least 1,250 hours of service for the covered employer during the 12-month period preceding the leave, and works at a location where the covered employer has at least 50 employees within 75 miles then the employee is eligible for FMLA. An eligible employee may take up to 12 workweeks of leave in a 12 month period for the care and bonding with a newborn, adopted, or foster child; and to care for oneself or immediate family member with a serious health condition.

FMLA applies to any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, with 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year. The law also covers state and local governments as well as public and private schools.

Employees are entitled to continue their health insurance while on leave at the same cost they must pay while working. Though FMLA leave is unpaid, employees may be permitted to use their accrued paid leave during FMLA leave. Additionally, employers may adopt policies requiring employees to use accrued paid leave during FMLA leave.

When an employee returns from FMLA leave, he must be returned to his former position or a significantly comparable position. If an employee doesn’t return from leave on time and has exhausted his FMLA leave entitlement, termination may be warranted for failure to return from leave and unexcused absences.

It’s important to be consistent in applying disciplinary action once employees have exhausted their FMLA leave entitlement. Allowing some employees to take an extended leave while quickly terminating others is risky and may encourage wrongful termination claims. Although some cases may warrant additional consideration, treating all employees in similar situations uniformly is best practice.

July 16th, 2014, 8:12 PM |  Posted in: Human Resources Management, Labor Laws |
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