Leave of Absence

Protected vs discretionary leave

The first question for any leave request is whether the law protects it, because that decides whether you can say no and what you owe the employee when they return.

Legally protected leave (US examples):

• [FMLA](/glossary/fmla/): up to 12 weeks of unpaid, job-protected leave in a 12-month period for a serious health condition, the birth or placement of a child, or caring for a spouse, child or parent with a serious health condition, plus military family leave. Applies to employers with 50 or more employees; eligible employees have worked 12 months and at least 1,250 hours in the past year at a site with 50 or more employees within 75 miles. Group health coverage continues on the same terms during leave.
• ADA: unpaid leave can be a reasonable accommodation for a disability, including leave beyond FMLA's 12 weeks, unless it causes undue hardship.
• USERRA: military service leave with reemployment rights.
• Pregnant Workers Fairness Act: time off can be a reasonable accommodation for pregnancy-related limitations.
• State and local laws: paid family and medical leave programs, state family leave laws covering smaller employers, paid sick leave, and leave for jury duty, voting, crime victims or domestic violence.

Discretionary leave: personal leave, extended travel, education, sabbaticals and unpaid leave after protected leave runs out. These are granted under company policy, and the policy should say how they are approved and whether the job is held.

Paid vs unpaid

FMLA leave is unpaid, but employees may choose, or employers may require, to use accrued paid time off at the same time. State paid family and medical leave programs, now in effect in a growing number of states including California, New York, New Jersey, Washington, Massachusetts and Colorado, provide wage replacement funded through payroll contributions. Short-term disability insurance often pays part of salary for medical leaves. Company parental leave policies may add paid weeks on top.

This stacking is where most administrative errors happen. A single parental leave can involve FMLA, a state paid leave program, short-term disability for the recovery period and company paid leave, each with its own eligibility, notice and paperwork. Map out the sequence for the most common scenarios in advance.

Running the leave process

1. Request. The employee asks for leave, ideally 30 days ahead for foreseeable leave, or as soon as practical. Under the FMLA, an employee does not have to mention the law; once the employer has enough information to know the leave might qualify, it must respond.
2. Notice. Under the FMLA, the employer generally has five business days to give an eligibility notice and rights and responsibilities notice.
3. Certification. Medical certification can be requested where allowed, usually with at least 15 calendar days to return it.
4. Designation. Tell the employee in writing whether the leave is designated as FMLA and how much counts.
5. During leave. Maintain benefits as required, track the leave balance, and agree how and how often to stay in touch.
6. Return. Confirm the return date, request a fitness-for-duty certification if your policy allows and requires it uniformly, and reinstate to the same or an equivalent role where the law requires.

Rules vary by state and country. Many employers outsource leave administration once they have employees in several states because the overlap of laws is hard to manage manually. Use a standard leave request form, or the FMLA leave request form where federal leave applies.

Coming back: the part most employers neglect

A person returning after three or six months away has missed process changes, system updates, new teammates and sometimes a new manager. Treat the return as a short onboarding: a meeting on the first day, updates on what changed, refresher training, and lighter targets for the first couple of weeks. This process is called reboarding. It matters for retention: return-to-work is a common point at which employees, particularly new parents, decide whether to stay.

Leave of absence in high-volume workforces

Large hourly workforces often have 2% to 5% of headcount on some kind of leave at any given time, and that share needs to be in staffing plans. A 500-agent contact center with 4% on leave has 20 seats it is paying to keep open but not filling with productive time. Workforce planners should include leave in shrinkage and capacity planning, and recruiters should know whether a vacancy is a real opening or temporary cover, which may be better filled by temps or overtime.

Common mistakes

• Counting FMLA-protected absences under an attendance points policy.
• Automatically terminating employees when FMLA runs out without considering extended leave as an ADA accommodation.
• Missing the five-day notice deadline because a manager did not tell HR about a request.
• Contacting employees on leave about work in ways that look like pressure to return early.
• No reboarding plan.