When Sick Leave Isn’t Enough & Employees Need a Leave of Absence

In last week’s post, I wrote about why paid sick leave is good for business. For most employees who are under the weather, a basic paid sick leave program can be enough to help employees recover from illness and minimize the risk of contagious employees spreading cold and flu germs around the office. But what happens when an employee’s time off for health reasons exceeds what you offer in your paid sick leave program? In situations like this, it may be time to look to your leave of absence policy.

Know When to Give FMLA Leave Rights

Do not jump to firing an employee who is out sick for an extended period of time. They may be eligible for leave time. The Family and Medical Leave Act (FMLA) applies to employers with 50 or more employees. Employees may be entitled to up to 12 weeks of leave in a 12-month period in the event of their own serious health condition; pregnancy-related disability; bonding with a newborn, adopted child or a child placed for foster care; or caring for a family member with a serious health condition. Employees may also be entitled to FMLA leave for a qualifying exigency relating to a close family member’s military service or to care for an ill or injured service member.

When it comes to employees being out sick and exceeding paid leave provided by your company, they may fit the definition of a serious health condition under the FMLA. If the employee’s absence due to illness involved inpatient care or a period of incapacity of more than three consecutive calendar days and also involves two or more treatments by a health care provider, you should give the employee information on their leave rights under FMLA. Things like the flu or a cold do not generally qualify as serious health conditions unless complications develop or the employee is hospitalized.

Some states have additional leave protections as well, so make sure to become familiar with what your state’s requirements are and how they interact with the FMLA.

Have a Clear Policy & Process

Regardless of what laws apply to your company, it is important to have a clear process detailing how you will deal with absences that exceed your normal sick leave program. For companies covered by FMLA and other leave laws, spell out all the eligibility requirements and expectations of employees on leave as detailed in the law.

Some companies who are not covered by the FMLA or other state or local laws governing time off for medical issues have chosen to enact personal leave policies. When setting up personal leave, ensure that your policy is fair and not discriminatory. Clearly state any limits on time and reasons for leave, and administer the policy in a fair manner. Your policy should also address what will happen to employee benefits while on personal leave.

You can also consider having a paid time off (PTO) donation program, so that employees can donate PTO to a coworker who may need a day or two extra to recover from a particularly nasty cold or other illness. As with your leave policy, your PTO donation policy needs to clearly state limits and other specifics of donation. You can limit PTO donations to emergency situations.

Accommodate Disabilities as Needed

Keep in mind that an employee’s ongoing health-related absences could be a sign that they need some kind of disability accommodation. Unless it would create an undue hardship, the Americans with Disabilities Act (ADA) generally requires that employers provide reasonable accommodation to employees with a known disability.

If you have an employee who calls in sick a lot, remind them that they may be entitled to leave time (depending on company policy and if you are covered by the FMLA). In the course of such a conversation, the employee may let you know that they have a health condition that fits the definition of disability under the ADA. The Job Accommodation Network (JAN) website is an excellent resource for employers who need guidance on accommodating disabled employees.

Aside from being legally required, disability accommodation is a good way to get employees back to work. Often there may be a schedule change, work-from-home options or other accommodations that could get the employee back to work and not on sick leave. Some disabilities may make it hard for an employee to get moving in the morning, which could result in calling in sick. Accommodating that employee with a later schedule may reduce their need to call in sick, which is a benefit to the employer and employee.

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Stephanie Hammerwold

Stephanie Hammerwold, is the founder and director of Pacific Reentry Career Services, a Southern California nonprofit that helps formerly incarcerated women find and maintain employment. She also blogs on a variety of HR topics as the HR Hammer. When not volunteering for her nonprofit, Stephanie has a day job in HR at a tech startup in Irvine, CA.


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