Sabrina

Welcome back to the HR Connection, the podcast built solely for those managing human resources in a 1 to 500 employee headcount. Why do we speak only to that group? Because HR in a small business is its own discipline. It is not smaller HR. It is its own discipline. Today, Marie and I are talking about leaves of absence, the policy that often does not match the practice. We're going to give you some practical tips, as always, for making sure that you have a leave process that matches your policy and that actually builds capacity in you instead of making you worry every single time somebody needs to go out on leave. If you are not already subscribed, please smash that button now. Let's get into it. Over 15 years of being in business, one thing that I have learned to be true is that when we get called in to do a handbook review, we are ultimately going to find policies that are different than the practice. So we are going to find policies inside of a handbook that are there, and maybe they're written well. Maybe they're good policies. Maybe they're fine. Maybe they're legal policies, right? They cover the company legally. But then when we go and we actually see and ask them if they are practicing that policy, we find out that they're not or that it's inconsistent. And that creates a huge liability issue for them, creates a huge liability issue to have one thing written down and then have that practice be the other one. And the biggest area that we see this that we are going to talk about today is within leave of absence. Marie, what do you think about that?

Marie

Yeah. You know, leave was one of the first areas that I learned as an HR professional. And I really thought it was going to be simple. And I have found that working with our clients, a lot of HR pros really feel like it is one of the more simpler parts of HR until someone actually goes out. And then you find out that you might not have a policy to guide you or your policy doesn't actually cover your state requirements. You find things like your payroll process doesn't actually match what you told an employee, or maybe even a manager is just saying something to employees that create expectations that the organization never intended to meet in the first place. So with all of that, today we're going to be talking about why leave is the policy that sneaks up on you. We're going to talk about what your process needs to look like when something real is happening. And then we're going to talk about what to actually do when an employee walks in and says they need time off. For everything, we're going to keep this very practical. You know, the goal isn't to turn you into a leave law expert. Nobody wants to be that. But it is we want to make sure that you're not figuring out your process the first time when someone is already out or having to recreate the wheel every time someone tries to go out. So if you have ever approved a leave and realized halfway through the process that you weren't sure what you were obligated to do, or maybe you've got managers handling leave requests informally and just hoping for the best, this episode is going to be for you. As we dive in, I want to talk about why leave really is the one that it really is the policy that gets people. And it's really never just one thing. Now, the reason leave of absence catches small businesses off guard is that it's never just one layer. There's what federal law requires, what your state requires on top of that, and then what your organization has already offered informally, whether or not that was ever written down. Most small business leave policies only address one of those three, which means that when something real happens, you end up kind of just building the plane while it's in the air. So federal law or FMLA, this is where most people start. And while it is the right foundation, FMLA only applies if you have 50 or more employees. So with that, what trips up smaller organizations is just assuming that if they don't hit that threshold, that 50 employees, they're just kind of off the hook. And really, that's rarely the case. When we think about California specifically, California's CFRA kicks in at five employees. But you've got Colorado, Washington, Oregon. All of these states have their own paid leave programs that apply well below that federal threshold. And the rule in all of these situations is that the employee gets whichever protection is more generous, not whichever is easier for the employer to administer. Now, that third layer is the one that surprises people the most, and that is the informal stuff. So like the verbal approval that somebody gave that wasn't documented or just the practice that's drifted from what the handbook actually looks like. So whether you have documentation or not, employees are always going to rely on what they were told, not what's technically on file. And it's important to remember that. So if there's a gap between those two things, that gap creates a lot of liability. Now, something else to keep in mind is that leave almost always involves an employee who's dealing with something hard, right? Someone is sick, a family member is in crisis, maybe a new parent is trying to figure out how to make things work. So how you handle their leave is how they will remember you as an employer. So having a process that's confusing or inconsistent, it doesn't just create legal exposure here. It really damages trust at exactly the moment when someone needed to feel like the organization had their back.

Sabrina

Yeah, I think that's such an important point that we talk about this in like the recruiting, hiring process, onboarding process, and we also talk about it with leaves of absence, that I think it's easy for us to get lost in our process and just want to check boxes and get forms and do what we need to do. But when it comes to a leave of absence, we have to remember that they are potentially dealing with either a big life change, like a baby, which is very happy, but it is also a very big life change, or they're dealing with a crisis. Maybe there's a health crisis or there's something going on, or they're a military member that's happened to, you know, that is being deployed. And how scary is that? And so, you know, they are dealing with something very, very serious in their life. And it is our responsibility to help them navigate that and make that as easy and as seamless and as smooth as possible and give them really good information. You know, leave is one of those places where I see managers. I know we talk about managers a lot and probably sound like we're just always beating them down. And I don't mean to be because it's never their fault. It's because they weren't trained. But leave is one of those areas where managers really lack information. And so then an employee comes to them and says, "I want to take a leave of absence." And they approve it before they have to walk it back. Or they say, "No, it's not approved. Like, you can't take that maternity leave. Like, we can't afford to have you out for that long," right? And so what is she supposed to do with this baby in her belly? So this is one of those areas that we are really dealing with somebody's mental health a lot of times. And so getting it right and making sure that everybody in the organization is trained on how to handle it is so super important.

Marie

Exactly. So from there, I want to talk about what policies probably say versus what they should say. So I see three gaps mostly policies have. And it's the same three gaps. And it's not because someone, you know, is careless. But in reality, especially if you're a HR department of one or running very thin, you're pulling templates from the internet or from, you know, valid resources. And then maybe you forgot to ever go back and review it based on compliance or what's actually happening in your state or in your organization. So I want to go over these gaps. So gap one, the policy was written to federal standards only. And, you know, this is a problem if you have employees in states with their own leave laws. And really, more states have their own requirements now than most employers realize. I already kind of talked about this earlier, but I want to say it again. California is the most well-known here. But Colorado, Washington, Oregon, New Jersey, all of these states have paid leave programs with their own timelines, wage replacement rules, and eligibility thresholds. So if your policy doesn't address the states your employees actually work in, it has a gap. Gap two is the policy doesn't address what happens in practice. It says when leave is available, but it doesn't tell a manager what to do when an employee says they need time off. It doesn't explain how documentation gets collected, who approves what, how payroll gets updated, or even when the employee is going to hear back. A policy that covers entitlements but not process leaves your managers improvising in real time. And really, improvisation in leave situations is where that liability is going to come from. Now, gap number three is intermittent leave. And really, this one gets avoided a lot in policies because it can be complicated. But in reality, it's also the most common scenario when it comes to leave. And so what this looks like is an employee with a qualifying condition. They're taking leave or taking time off in increments, right? A few hours here, a day there versus all at once. So your policy, it needs to say how that intermittent time is going to be requested, how it's going to be tracked, and how you communicate with the manager about attendance without crossing into the employee's medical information. And if it doesn't, you're navigating that situation on the fly every single time. Now, one thing, one more thing that's worth naming, when a leave request comes in for a serious or chronic health condition, there's a good chance it's also an accommodation conversation under the ADA. So those two things, they often arrive together and need to be handled in parallel. Also, you don't have to be an accommodation expert to know that. You just have to know, you know, you just need to know when that someone requests leave for a qualifying condition. Your job is to make sure both conversations are happening, not just one of them. And so the point here isn't that your policy has to be comprehensive before you can do anything. It's that if you can name which of these gaps you have, you know what to work on first.

Sabrina

You know, I think leave of absence is one of those tasks, HR tasks, that for especially our solo practitioners probably feels really heavy if they're in a population that takes a lot of leaves, right? Like we were talking about clients earlier in a meeting that we had. And we have a client that has a younger, like family starting age population. And there are a lot of leaves of absence that they have. And I know our larger clients, just by mere nature of how many employees they have, there are a lot of leaves of absence. And how that feels for our generalists when they've got three or four on their plate that they're dealing with per client. And so being that solo practitioner and having to navigate all of these leave laws, I'm sure feels really heavy. And then on top of it, you likely have a CEO who has no clue. They have no clue about all the different leave laws, especially sitting here in California. Let's think about all the laws and how they intersect. And some run concurrently and some run consecutively. And like keeping all of that straight is so very heavy, I'm sure, to somebody who is trying to do all the things and be all of the things for everyone. So I think that the gaps that you've named are ones that we see quite often. And they're a good starting point for somebody who is maybe trying to do this alone to just look and make sure, are they covered in those areas? And if not, how do we shore that up?

Marie

You know, as complex as it is, leave is one of my most favorite areas in HR. It is such a good opportunity to connect with employees and coach managers and just really follow a process and set people up for success. And, you know, like I said earlier, it really does leave an imprint on employees in the future. So anyways, I'm just excited to talk about this stuff. So with that, I want to talk about what actually happens in practice. So here's where the process breaks down. So again, most leave mistakes, they happen because there was no process. So someone made a judgment call under pressure. An approval got given verbally or I'm sorry, an approval was given verbally, and it was never documented, right? A denial went out by phone with no paper trail. A manager was forwarded the medical certification because nobody told them that was off limits. Or maybe a deadline was missed because nobody was tracking it. The things that create the most exposure here, they're not dramatic. They're really small, actually. And they're going to look like these three things. So leave that was approved with a handshake or just an agreement over a phone conversation. PTO and FMLA treated as the same thing without ever explaining to the employee that they can run at the same time. And then a manager fielding questions from an employee's doctor because HR wasn't sure who, you know, whose job that was. And these examples, you know, they're not failures of intent. They're just failures of process. So what a process that holds up actually looks like is this. When a leave request comes in, the clock starts. The employee needs to know within a defined window that their request was received and what happens next. When you think about an emergency leave, that's going to be within 24 hours. And then for a planned leave, the outreach happens 30 days before the start date. That's not really optional here. A signal to the employee that someone is handling this and they're, you know, just not in a void somewhere. From there, HR verifies eligibility, builds out the leave packet for the specific leave type, and then gets it to the employee within five business days. Now, this packet is not a generic packet. It is very specific with the right forms and the right state documentation for where the employee actually works. Then when the paperwork comes back, a written designation goes out to the employee and then copies the manager on the dates and logistics. You've got payroll, benefits, coverage, all of it. All of it's going to be confirmed in writing. Now, the piece most small businesses skip is the return. So HR will be reaching out to folks two weeks before the expected return date versus scrambling the day before. The manager needs to know what's happening. So whether any accommodations are needed or what the reintegration actually looks like. And then the employee gets a welcome back on their first day. That last one, it sounds small, but it isn't because it's going to be the signal that employees were handled with care and they're returning to a team that expected them versus just being forgotten while they were out. Now, I do want to make a note on people managers. Managers need a clearly defined set of responsibilities when it comes to leave. So when an employee says they need time off for a health or family reason, the manager's job is just to direct them to HR. They don't need to make promises. They don't need to ask questions about the medical situation. They just need to direct them to HR. And I'll say I know the instinct here is to, you know, we want to be managers. They want to be helpful, and they want to handle it in the moment. But that is exactly what creates the problem. So you want to make sure that you give your managers that script before the situation actually happens.

Sabrina

And you know, when this process is followed, it just makes things so much easier. When you have a documented leave process, when you have all of your forms and templates ready to go, when you have communication, when your managers have been trained, when they know what to do, what their part of this is, when you have a documented process for payroll deductions and benefit coverage and all of that that's happening, it just makes every leave not be this panic attack, right? Every time an employee comes to you and says, "I have a leave," you panic because now you've got to figure out all the things and remember all the things. And I know I would never remember them all if I didn't have something written down that was a process that I could work through where I knew all the forms I had to give, especially, you know, again, in California where we've got to work with the state disability and all of that stuff. Like, it's so helpful for this to be one of those areas that you don't wing. You need a process. And as we always talk about building capacity on this podcast, when you have something like leave come hit you and you are starting from scratch each and every time, that is just sucking away your time that you don't have and that you don't need it to. And so just following this very simple process that we've given, making sure that you have a really thorough documented process is such a good way to build capacity and something that can absolutely turn into such a time drain.

Marie

Exactly. Now, we know that it's not realistic to just fix everything at once. So I do want to give you three things that you can check before the end of the week or maybe plan to check for next week for you. First, I want you to open your handbook and read your leave policy. Then ask yourself, if a manager called you right now because an employee just said they needed to take time off, could you walk through the process from initial request to written designation without looking anything up? If the answer is no, that's your starting point. Number two, check whether your policy addresses the states your employees actually work in. Not where your business is incorporated, but where your employees actually are. So again, if you have anybody in California, Colorado, Washington, Oregon, or New Jersey, and your policy doesn't specifically address those state requirements, you have a major gap. This is almost always unintentional. It's unintentional. It's just that the policy was built once, and then no one ever goes back to layer in what those states actually require. And those updates happen, you know, every so often. So make sure to check on that this week. And then number three is identify who in your organization would actually run a leave if one started today. So not who it would land on by default, but who actually knows the process. And then ask the following questions. Have they done it before? It's probably you. So have you done it before? Is there a written workflow anybody could follow under pressure? Not just a policy document with legal language, but an actual, you know, workflow of everything. Now, if that process doesn't actually exist or you are taking this on for the first time and you need to create that workflow, that's going to be a gap that you also need to close. Again, you don't have to fix everything right now or next week. But if you do those three things, you will definitely know exactly where your exposure is. And then the next time someone walks in and says they need to go out, you'll be running an actual process versus trying to figure one out.

Sabrina

Yeah, I'm glad that you've mentioned on here a couple of times about the different states because what I find is sometimes people think that they only have to abide by their headquarters state. So they only, you know, if their headquarters is in California, then they only have to offer California things. If they're in Alabama, they can only offer Alabama things. But the reality is if you have employees in different states, then you need to look and see if there are leave laws that affect you. And maybe if it's just one employee, there won't be one because there are usually headcount thresholds. But you need to check. You need to check all of your states and make sure that you are compliant across all of them. Just a little tip I think that we give, Marie, and you can disagree with me if you think this is different than what we say now. But I know typically what we say is if you have employees in many, many states and you can do it, the ideal situation would be to offer the leave protections to all states of the most generous one. So if you have employees in California and also, you know, Louisiana and Florida and New Jersey, and California is the most generous, then you would just make that your policy across all states. If you can do that, I think that makes it easier to navigate the leaves because then you're not looking up, "OK, this person's in New Jersey. Here's their leave offering." Just give everybody the most generous if you can. I understand sometimes maybe there's budget issues or other things that might affect that and you can't. But I think genuinely that's kind of our advice is just make it easy on yourself. Don't have 16 different state leave policies. Just try to have the most generous one and go with that one.

Marie

Yep, exactly.

Sabrina

But yeah, I think it's, you know, again, leaves can be so overwhelming and they can be so confusing. And so I think it's, you know, just looking at the things that you've mentioned as gaps. Let's try to shore those up. And then every time that you have a leave, just try to make the process 1% better, 1% better, 1% better. And eventually, you're going to have a process that flows really well, that is easy for you to navigate, and that makes employees feel like they are taken care of in what can be a very vulnerable time for them.

Marie

Yep. You know, leave really is one of those areas where doing it right really matters. And it's not just for compliance, but for the person on the other end of it. You know, a process that's consistent and thoughtful really is how you get both things, an organization that's protected and an employee who felt like someone actually handled this with care. Thanks again for every thanks everyone for being here. We'll see you next time.

Sabrina

We'll see you next time.