Human Resource Blog

Leave policy for less than 50 employees

My company is in the state of Texas and we are attempting to start a leave policy for our employees. This leave policy needs to include not only illness but any type of leave that will be longer than 10 working business days.

Since we do not fall under the FMLA regulation we want to make sure that we are not stepping over any other regulations that might applied Federal or state. Also since we offer health insurance want to make sure we are including any health insurances issues that may apply.

Your response and assistance is appreciated.

The important point is to write a leave policy that you can live with — because you will have to enforce it consistently with all employees. The worst, most annoying employee will be entitled to the same leave as your best employee, once you have established a written policy. If you enforce the policy sporadically, you could wind up on the wrong end of an illegal discrimination suit. So consider carefully when writing your policy.

First, be aware that you may be required to grant unpaid leave to employees who are members of the military or emergency workers under USERRA. You may also  be required to grant unpaid leave to disabled employees under ADA, the Americans with Disabilites Act. In some cases, employees may be entitled to unpaid leave as a reasonable accommodation for their religion.

The best practice in HR is to give 3 days of berevement leave to employees who have a death in the immediate family. You will need to define immediate family — usually mother, father, sibling, spouse, son or daughter. Some employers will include step parents, step children, grandparents and in-laws. It is reasonable to require proof for bereavement leave, such as an obituary, funeral flyer or death certificate.

You will need to establish a maximum number of sick days that employees can take each year — perhaps 10 work days, spread over the year. You can require a doctors note for an absence, or an absence of 2 days or more, but you cannot require a diagnosis.

Frankly, most small employers do not grant medical leave beyond the maximum number of sick days, for valid reasons. It can be very difficult for an employer to cover the shifts if a worker is absent for weeks on end. It would be reasonable for you to terminate any employee who was out sick more than 10 or 15 work days. (And even fewer would be lawful.)

Be aware that whatever medical leave you offer, you must also extend the same benefits for pregnancy or childbirth disability. So if you permit an employee to take 8 weeks to recover for a heart attack, you must permit a woman who has had a c-section to take the same amount of time.

Allowing employees extended leave for non-health-related issues is even more uncommon among small employers. Remember that if you offer 4 weeks or 8 weeks of unpaid personal leave, you may find that every employee takes that time off, every year. Granting this type of leave would also put you in the unenviable postion of defining what is and is not an acceptable reason for being off.

The best practice would simply be to terminate employees for excessive absenteeism after they have exceeded their paid sick leave, and permit them to apply for any openings when they are physically able to return to work.

Health insurance while the employees are on unpaid leave can also be problematic. You could require that an employee on unpaid medical or personal leave pay 100% of the health insurance premium each pay period, including any portion you normally pay for employees. But check with your insurance company first…some insurance companies require that only active employees or those on FMLA be covered.