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Unpaid Time Off

I am having trouble with “inmates running the asylum” and some employees are requesting a bunch of extra time off. I need to set some limits. I’m just not sure what is typical for unpaid time off. If an employer does allow for a certain amount of unpaid leave, how much is allotted per year?

There are a few laws to consider when implementing leave policies: the Family & Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and the Pregnancy Discrimination Act (PDA). Whether any of these laws apply depend on the number of employees you employ and the reason the employee is requesting time off. Let’s briefly discuss each law.

The FMLA entitles eligible employees of covered employers up to 12 weeks of unpaid, job protected leave for certain family and medical reasons within a 12-month period.

An eligible employee is one who works for a covered employer, has worked for the employer for at least 12 months, has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave, and works at a location where the employer has at least 50 employees within 75 miles.

The ADA prohibits discrimination on the basis of disability in any aspect of employment. Under the ADA, employers are required to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense.

The ADA covers employers with 15 or more employees. Any employee with a covered disability is protected under the ADA regardless of his or her tenure with a company.

It’s the employer’s responsibility to determine if an employee has a covered disability under the ADA. If so, it’s also the employer’s responsibility to engage in an interactive exchange of information with the employee to determine what, if any, reasonable accommodations can be made to allow the employee to perform her job.

Reasonable accommodations often include a short term leave of absence.

Under the PDA, an employee who is temporarily disabled due to pregnancy, childbirth, or related medical condition must be treated in the same manner as other employees who are temporarily disabled.  For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

Just like the ADA, the PDA applies to employers with 15 or more employees and there is no service criteria for employees to be covered.

The PDA focuses on the employee being treated in the same manner as other temporarily disabled employees. So, if other temporarily disabled employees are entitled to a short term leave of absence then the same benefit must be provided to an employee who is temporarily disabled due to pregnancy, childbirth, or related medical condition.

It’s also important to consider any state leave or disability laws.

Let’s assume none of the aforementioned laws apply to you or an employee’s current situation, and employees request additional time off after exhausting their paid time off accruals (i.e. vacation/sick time). Whether or not you allow employees to take such time off is completely at your discretion. Furthermore, if you adopt an unpaid leave policy, then the provisions of the policy are at your discretion as well.

Unpaid leave policies vary greatly by employer. Industry, location, company size and business operations all affect the type of leaves employers offer. Many employers offer at least 2 weeks for a personal leave while other companies will offer up to several months of unpaid leave.

When determining how much leave you want to offer consider why employees may need the extra time off and business operations. If you can afford to offer more leave then it’ll be a great benefit to employees.

Just remember to clearly outline employee eligibility requirements (i.e. full time employees), how much leave time is allowed, procedures for applying for leave (i.e. leave request must be in writing), that the leave time is unpaid, any affect on employee benefits (i.e. vacation time will not accrue during leave time, employees will be responsible to pay their normal insurance premiums etc…), whether the employee’s exact job will be held for him/her or a comparable one), consequences for failing to return on the agreed upon date, and that the employer reserves the right to deny requests based on operational needs.

Also, most unpaid/personal leave policies are reserved for employees who need to address important matters. For example, recover from an injury/illness, care for a family member, bereavement, or any other pressing matters.

Typically, unpaid/personal leaves don’t apply to an employee who wants to take an extra day or two of vacation after using all of his paid time off. Again, whether to allow this or not is up to you. If this is the problem you’re currently having then consider reminding all employees that they’re expected to request time off only if they haven’t exhausted their PTO accruals. Be clear that any time off requests without available PTO accruals will be considered on a case by case basis based on the employee, his/her need for the time off, and operational needs and that such a request should be reserved for urgent or pressing matters.


This entry was posted on Friday, June 16th, 2017 at 6:56 pm and is filed under
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