Generally, family and medical leave laws, such as the federal Family and Medical Leave Act (FMLA), require that covered employers provide eligible employees with job-protected leaves of absence for qualifying reasons. While the FMLA covers employers with 50 or more employees, some states have similar laws that apply to employers with fewer employees. Additionally, several states and local jurisdictions require employers to provide leave under additional circumstances.

Absent such requirements, employers may decide to voluntarily provide leave to employees who need to take extended time off for family and medical reasons. Employers who choose to do so should have a written policy that addresses eligibility, leave entitlement, length of leave, notice requirements, benefits continuation, reinstatement, and related issues.

The following are guidelines for drafting a family and medical leave policy:

Weigh the pros and cons.

When you are not required by law to provide family and medical leave, it is important to decide whether offering leave makes sense for your company. Voluntarily offering such leave can help you retain valuable employees by giving them the flexibility to manage family and medical situations. However, there are costs associated with both providing and administering leave, such as loss of productivity and the need to allocate resources to track leave use.

Understand the impact of federal, state, and local laws.

Employers should be familiar with and understand federal, state, and local laws that may entitle employees to leave for various reasons. For example, your state or local jurisdiction may provide employees certain leave rights, such as medical leave for organ or bone marrow donations, or leave if they are a victim of certain types of crimes. If an employee’s medical condition qualifies as a disability under the Americans with Disabilities Act, the employee may be entitled to leave as a reasonable accommodation. You should assess which leave requirements apply to your company and align these requirements with your family and medical leave policy. When an employee’s reason for leave qualifies them for leave under more than one law, the leave can generally run concurrently; however, employers should check the specific laws to ensure compliance.

Who is eligible?

Your policy should be clear about who will be eligible for leave. If eligibility is limited to full-time and/or part-time employees, you should clearly define what your company considers full and part-time. You should also consider whether employees have to work for your company for a certain length of time before becoming eligible to take leave. For example, the FMLA requires employees to work for the employer for at least 12 months and at least 1,250 hours during the previous 12 months to be eligible for leave.

What reasons qualify for leave?

The policy should clearly state what reasons qualify for leave. You should decide whether employees will be able to take leave for their own medical conditions and/or those of family members. If the policy applies to family members, determine who qualifies as a covered family member (e.g. spouses, children, parents, grandparents). Employers should review federal, state, and local laws to make sure their definition of family member is compliant with the most recent laws and regulations. If the policy applies to "serious health conditions," explain what qualifies as a serious health condition. Employers may look to the FMLA for guidance on defining these terms. Employers may also want to consider having a provision for military family leave in their policy.

How much leave will be granted?

The policy should state the maximum amount of leave available to eligible employees. Absent a federal, state, or local requirement, employers may choose a duration that is reasonable for their business. As a guideline, the FMLA generally entitles eligible employees to use up to 12 workweeks of leave in a 12-month period. Employers should also consider whether employees will be allowed to take leave on an intermittent or reduced schedule basis. If such scheduling is permitted, employers should clearly define the increments in which an employee may take leave on an intermittent or reduced schedule.

Will leave be paid or unpaid?

In general, employers have the option of offering paid or unpaid leave to employees. However, if an exempt employee works any part of the workweek in which the leave occurs, the employee must generally still receive their full salary. Employers may also require the substitution of any accrued paid time off during the leave. Any such requirement should be communicated in the written policy. Note: A handful of states have paid disability/family/caregiver leave programs, which are funded by employees via payroll deductions.

How much notice must employees give?

The policy should state how much notice employees are required to give before taking leave. Many employers follow the FMLA and require 30 days of notice when the leave is foreseeable. When the need for leave is unforeseeable or when 30 days of notice isn't possible, employers generally require notice as soon as practicable.

What are the procedures for requesting leave?

It is a best practice for employers to require employees to request leave in writing when possible. The policy should state to whom leave requests are to be submitted. Employers may ask that the employee provide a brief description of the need for leave and the expected duration of the leave, if known. The employer should notify the employee about whether the leave is approved or denied in writing as well.

Will you require medical certification?

When leave is taken for a serious health condition, you may want to require employees to provide certification from a health care provider. This can help prevent abuse by confirming whether the condition qualifies for leave under your policy. This requirement should be noted in your written policy and applied consistently.

Will employee benefits be maintained?

The policy should indicate whether the employee may continue health, dental, and other benefits during the leave. If employees are able to continue benefits during the leave, the policy should state whom the employee should contact to discuss procedures for making premium payments.

What is your reinstatement policy?

Employers should set forth their company’s policy regarding reinstatement after the leave period ends. Most employers will try to place the employee in the same or comparable position to what the employee held before the leave began. However, employers should make clear that the employee has no greater right to reinstatement or to other benefits and conditions of employment than if they had been continuously employed during the leave period. Employers should also set forth any employment action that may be taken if an employee voluntarily fails to return from leave. Where applicable, employers should also reiterate that employment with the company remains at-will despite the employee’s leave status.

Conclusion:

Whether you provide leave voluntarily or because of a federal, state, or local requirement, it is important to have a written policy that outlines employer and employee responsibilities related to requesting and taking such leave. Employers who are not subject to the FMLA or related state laws and wish to offer voluntary family and medical leave may customize this policy to suit their business needs.