This is an important area that requires a lot of time, documentation and research to make sure it is done correctly.
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This podcast will focus on another key driver of business potential – your human resources plan. Steve Cesare is The Harvest Group’s point person to help companies improve their human resources programs. He is also writing a monthly series for Lawn & Landscape magazine identifying the “Top Ten Most Serious Human Resources Mistakes” that companies typically make.
The Grow Show will highlight those topics each month as part of its continuing podcast series. Here is the “Ninth Most Serious Human Resources Mistake that companies make: Employee Leaves of Absence.”
There are several reasons why employee leaves of absence are important to landscaper contractors.
- Many landscapers think that employee leaves of absence include vacation and sick time, when in fact there could be as many as 20 different types of leaves of absence that an employee may be legally entitled to take.
- Understanding employee leaves of absence is becoming increasingly complex because many state governments have specific employee leaves of absence that may be partially redundant yet still unique when compared to federal employee leaves of absence.
- A recent survey showed that the average legal fees for a company to defend itself against a single Family and Medical Leave Act violation approached $78,000. Keep in mind, this is just the legal fees and does not include costs related to the employee’s lost wages and benefits, administrative penalties, or emotional distress.
Common types of employee leaves of absence — There are three types of employee leaves of absence: federal, state and employer discretion.
- The federal government requires that employers provide employees with multiple unpaid leave programs including: the Family and Medical Leave Act (FMLA), Uniformed Services Employment and Reemployment Act (USERRA), and Federal Jury Duty.
- Beyond the federal laws, each state has its own unique set of employee leaves of absence, some of which are unpaid, while others require that they employee get paid while off from work. Some examples of state leave programs include: The New York Military Spouse Leave Act, Tennessee Maternity Leave Law, Illinois Blood Donation Leave and the California Time Off to Vote Leave. And of course, each state has its own workers’ compensation leave program.
- The final leave of absence category is employer discretion. This type of leave is not required by law. It can be offered by the employer if so desired, and must be applied without any type of discrimination. Employer discretion leave includes: vacation, sick leave, bereavement leave and personal time off.
Three common mistakes landscapers make regarding federal and state leave programs.
- Negligence: Negligence is when the employer does not offer, communicate or approve the available leaves of absence as defined by law. For example, if an employee was injured on the job and the employer did not inform the employee of his/her rights to workers’ compensation.
- Improper administration: This occurs when an employer does not abide by the legal procedures outlined by the particular leave of absence program. For example, not using correct administrative forms, violating employee privacy rights (e.g., HIPAA and FMLA) and not continuing medical benefits while an employee is on a leave of absence.
- Retaliation: Retaliation against employees who take leaves of absence. Many recent court decisions have ruled in favor of employees based on employer comments (e.g., “Aren’t you back from medical leave yet?” “What am I going to do to cover your work while you are out on workers’ compensation?”). Similarly, an employer must never document any aspect of a leave of absence in an employee’s annual job performance review (e.g., “John’s performance this year was severely hindered due to the fact that he missed five weeks of work while on leave of absence.”).
Basic steps to minimize risk exposure in this area.
- Take an inventory of all federal and state leave programs that may affect your company. Document them in your employee handbook, and develop procedures to ensure legal compliance.
- Understand the criteria for taking each specific type of leave of absence.
- Identify which employees are eligible for all of the available leave programs. Some programs are extended to all employees, while others have limitations based on length of service.
- Determine the duration of leave program. For example, time off to vote is usually two hours, while the FMLA is 12 weeks.
- Make sure you know if the employee will be paid or unpaid on the leave, and if the employee can continue to receive their benefits while on a leave of absence.
- Specify the right to return to work after the leave is completed. For example, can the employee return to an “equivalent” position or does the employee have to return to the “same” position after the leave has been completed.
A few landscape industry best practices:
- Training: Leading companies train all appropriate staff (e.g., administrative, human resources, supervisors) on how to identify, discuss, and review leaves of absence relevant to their company.
- Communication: These companies have all of the required state and federal employment posters in place, an employee handbook and policy manual that addresses each available leave of absence.
- Employment Practices Liability Insurance: This protects companies against various human resources issues including violations of federal and state leave of absence laws.
- Established Procedures: Detailed procedures that track all aspects of each type of leave of absence for every employee across all legally required time frames. Some leaves of absence can overlap with certain leaves of absence, but not overlap with others.
- Best in class companies frequently rely on expert legal guidance when confronted with the technical complexities inherent within many leaves of absence programs.
If you have any questions about your company’s leaves of absence or any human resources related question send an e-mail to Steve at [email protected].
Next month, we’ll share the Eighth Most Serious Human Resources Mistake Companies Make: How to avoid claims of retaliation. The Harvest Group will also provide listeners with another installment in our Making More Money series as our Grow Show series continues.
