EP 126: How to Handle Employee Leave Without Getting Sued (FMLA, ADA & Bereavement Explained)
Don't Waste the Chaos — HR Foundations Series, Part 5
Episode Intro
One employee asks for time off and you say yes. Three weeks later, another employee asks for the same thing — and you say no, or you give them less. Neither of you realizes the problem you just created. This week we're jumping into leave management. It may not be the most exciting HR topic, but it's the one where I see the most lawsuits — and almost always unintentionally. In Part 5 of the HR Foundations series, I walk through the types of leave every employer must know, what the law actually requires, and how to handle leave consistently so you don't end up with a discrimination or retaliation claim sitting on your desk. We cover FMLA, ADA, the Pregnant Workers Fairness Act, USERRA, jury duty, voting leave, sick leave, and the bereavement-policy fix you can put in place this week.
🎧 Listen on [Apple Podcasts], [Spotify], or watch on [YouTube].
Show Notes
What you'll learn in this episode
The federal and state leave laws that apply to your business - and the "applicable large employer" calculation small employers often get wrong
FMLA basics: who qualifies, what it actually covers, and the three most common mistakes
Why one leave bank usually works better than splitting sick and vacation
How the Pregnant Workers Fairness Act and ADA quietly apply at just 15 employees
Intermittent FMLA — the hardest leave to track and the easiest to mess up
Why inconsistent leave decisions are the fastest path to a discrimination claim
The interactive process under ADA, explained without the legal jargon
What to document for every leave event (and why benefits records stay separate from performance files)
The bereavement policy fix you can put in place this week
Chapters
00:00 — The leave mistake that quietly creates lawsuits
01:00 — Welcome back: where we are in the HR Foundations series
02:26 — Resources: The HR Easy Button book and HR Foundations course
03:30 — Federal and state leave laws (and what "ALE" actually means)
04:51 — FMLA basics: 50 employees, 12 weeks, job protection
06:00 — Jury duty, USERRA, voting leave, Pregnant Workers Fairness Act
07:07 — One leave bank vs. two — why I prefer one
09:02 — FMLA deep dive: thresholds, eligibility, what it covers
11:24 — Mistake #1: Not designating FMLA when it qualifies
13:39 — Mistake #2: Requiring PTO use without writing it down
16:01 — Mistake #3: Not reinstating a returning employee properly
18:24 — Intermittent FMLA — the most complicated to track
20:44 — Inconsistency = discrimination claims
22:55 — Age, remote work and the "well-meaning" manager problem
25:18 — Process: how to actually handle a leave request
27:43 — ADA — applies at 15 employees, not 50
29:58 — Returning to work: documentation, restrictions, accommodations
32:19 — What you must document for every leave event
34:38 — Managers: this is on you, too
36:46 — Your one action this week: fix your bereavement policy
39:04 — Coming up next: Performance & Feedback (Part 6)
Resources mentioned in this episode
📘 The HR Easy Button — Book 1 in the series on employer responsibilities, HR law and compliance, hiring, and onboarding.
🎓 HR Foundations course — saltandlightadvisors.com/hrfoundations
📊 Free HR audit — saltandlightadvisors.com/hraudit
📞 Book a call — saltandlightadvisors.com/contact
Keep going
▶️ Subscribe to the Don't Waste the Chaos YouTube channel
📊 Take the free HR Audit — Score your HR systems in 5 minutes and see exactly where your gaps are. → saltandlightadvisors.com/hraudit
✉️ Subscribe to the newsletter — Weekly insights in your inbox.
Episode Transcript
[00:01] So someone on your team asked for some time off and you say yes. And then someone else asked you for the same thing about three weeks later and you say no, or you give them less. And neither of you realize the problem that you just caused. So this week we're jumping into leave management. And I know this might not be the most exciting topics when it comes to HR, but it's one where I see a ton of lawsuits because leave creates a lot of legal exposure and it's almost always unintentional based off of what I've seen and what I've witnessed inside of employers myself or with clients. So I want to talk about the types of leave that you must know, what the law requires, and how to handle leave consistently. That's what we're getting into today. We're still in the operational bucket. So we've gone through that foundational bucket. Now we're in the operational bucket. And so I'm excited to get into this with you today because it's something that you really need to know.
So welcome back to another episode of Don't Waste the Chaos. You've caught me in the middle of a 13-part series. So we've gone through the HR mindset, we've gone through hiring, onboarding, HR law and compliance. We've gone through compensation and classification. And this week we're on leave management. So if you haven't heard the previous episodes, I highly recommend that after this episode you go back and listen to all of those because what we're doing is we're building your HR foundation in your business. So by the end of the 13th episode in this series, you should be at a much more solid place for your HR structure.
And if you're like, okay, yeah, the podcasts are great, but I need more, I do have my book, The HR Easy Button. This book, which is book one in a three-part series, specifically gets into employer responsibilities, HR law and compliance, hiring and onboarding. Book two, which will come out later this year, is going to get into leave management, disciplinary actions, terminations, and things like that. And then the third book gets into more of the strategic pieces of HR around culture, leadership development, and things like that. I've also got coursework online if you want to go deeper and then also get some downloadable tools and resources and templates that you can use inside of your business.
[02:26] And so if you go to saltandlightadvisors.com/hr-foundations, you can find that coursework. My book's on Amazon — just type in "The HR Easy Button" and you'll be able to find it. And so I've got a few resources out there for you, but this episode we're gonna go deep when it comes to leave. All of these episodes, I'm jumping off the deep end because I really want to make an impact on small to mid-sized businesses that don't have HR resources themselves but want to do it right. Because being a small business is not an excuse for following the law. We are required to follow the law. We have responsibility in this area.
So let's get into leave today. There are federal and state leave laws that likely pertain to your business. Now, there's some thresholds. If you've ever heard of an ALE, that's an applicable large employer. And so many times I hear clients say, "Well, we don't have 50 full-time employees." And I'm like, okay, yeah, that very well could be it. But to be an applicable large employer, there's a calculation that comes along with it. So you might have 70 part-time employees and that might make you an applicable large employer because of a calculation that shows you've got full-time equivalents. That's what an FTE means. And so if you get on AI and you ask how to calculate your full-time equivalents, there's data out there — I would just upload your employee census and say, "do the calculation for me" and it will create an Excel spreadsheet for you. And you should be tracking this monthly.
And without getting too far into the weeds on this, there's a look-back period. So when you become an applicable large employer, they're looking at the prior year. So let's say in 2026 you're going to hit that 50 FTE mark. Then a lot of the compliance pieces will land in 2027. But when it comes to leave, I usually recommend that an employer is generous with their leave or with their application of the Family Medical Leave Act specifically, and of course USERRA and a few other things, because why not? It's job protection. It's not payment. It doesn't mean that you're going to pay for their time off. So it's just protection for the job. It just to me makes it easier. There's laws out there that you can follow, the guidance through the Department of Labor.
[04:51] So FMLA — Family Medical Leave Act, that's what this means. If you have 50 or more employees, this is a 12-week unpaid job protection. And there's a process that you need to go through when it comes to FMLA. There's a certification process and then there's a tracking mechanism. And if you don't have an HR payroll software, it's going to be a little bit more complicated, but you can do it in Microsoft Excel. I recommend that you have an HR payroll software, even if you have three employees, just because there's a number of things that will automate and do for you, and the time that it will save you is well worth the money. And most of them are more affordable than what you would assume.
So that's Family Medical Leave Act. You also are required to participate in jury duty. This is required in every single state. Unpaid is generally fine, but you cannot terminate for it. So if someone is gone due to jury duty, you can't terminate that employee. I don't think any of us would, but just stating.
Military leave — I mentioned USERRA. Actually, I'm recording this on Memorial Day. My husband is a Marine Corps veteran, and of course, it's a day of reflection in our home for those who signed on the dotted line knowing that they may not come home, and then they didn't come home. But USERRA leave is something that we want to recognize. This is for all employers. This is job-protected regardless of size of employer.
Next is voting leave. This varies by state, so you want to check your state requirements, but most states require that you allow someone to leave for voting leave or give them some flex time around it.
When it comes to parent leave or pregnancy leave, this is usually FMLA-eligible for that. And then there's also the Pregnant Workers Fairness Act that came out in 2023. That applies to employers that have 15 or more employees. So make sure that you're checking into that if you haven't already.
Then there's also state-mandated sick leave in some states. I operate out of the state of Missouri. A lot of my clients do as well. It's not currently mandated in the state of Missouri. Or I would say if you're in Missouri, you know that last year it was mandated and then it was not mandated. There was a lot of back and forth on that. Make sure you check this annually — this is changing nationally.
[07:07] Back in the day, everybody had different vacation and sick banks. And then they consolidated and had one bank. And then states now — some are saying you need to have two separate banks. Just follow your state's regulation. In my personal opinion, I like it to be one bank.
Here's why from an employer and employees' perspective. I think when you have two separate leaves, it encourages dishonesty. And I know if you're an employee, you might say, "Gosh, that's just not true." But based off of my over 20 years in HR, I've just seen when an employer gives a bank of sick time and then a bank of vacation time — for the individuals who actually have a sickness or an illness or a family member sickness or illness, child, whatever, they use it. And for the individuals who are in general healthy and don't use it, there becomes this bitterness almost. And in a lot of ways, it encourages folks to feel like they need to be dishonest to utilize a benefit that is allocated toward them. And then there's this weirdness, especially with social media — it's like, "Well, I can't post today because I said that I was sick" or whatever. I just think authenticity is always the key.
I like the one bank personally so that way employees understand how to access their benefits and it's available to them at any time. But I do have clients that do two separate banks and they're nervous about going down to one and I can totally support that. It's literally just building it out appropriately in your HR payroll system. But it just complicates things and I hear grumbling when it comes to employees. Either they choose to be dishonest, or they aren't dishonest and then they're a little pissy because they didn't utilize a benefit that someone else was able to utilize. And then it goes away — sick leave usually doesn't accumulate, and usually you don't pay out sick leave upon termination either. And so people feel like they just lost the benefit, even though should they be grateful that they weren't sick or had an illness or injury or whatever? Yes, but you get the point. So I like the one leave bank, of course, unless it's state-mandated.
[09:02] So let's get a little bit deeper into FMLA and what I see most small businesses getting wrong in this area. The threshold for this is having 50-plus employees within a 75-mile radius. And if you're not there yet, you still need to understand the process. Why is that? Because you'll probably get there. And also because the Pregnant Workers Fairness Act applies at 15 employees.
Also, another aspect of FMLA is that employees have to hit this calculation. They have to work 12 months and 1,250 hours in the past year to qualify. A lot of times in a small employer, because it's burdensome for them to do the math on that, they're applying it when it's not applicable or they're not tracking it appropriately and then it's hard for them to understand the tracking. So the employee needs to work for the company for the last 12 months, and in those 12 months they need to have worked 1,250 hours to qualify.
So what does FMLA actually cover? It covers serious health conditions of the employee themselves, of the employee's spouse, of the employee's child, or of the employee's parent. So we've moved into the caregiver aspect. It also covers birth, adoption, and the placement of a foster child. And it also covers military leave — care for a service member or for themselves. This is separate from USERRA. So this is what FMLA is in general covering.
[11:24] So here are the big mistakes that I'm seeing. Number one: not designating FMLA when it actually qualifies. I have had a client — several clients, but I'm thinking of one in particular — that this employee qualified for FMLA. They just let them take leave. There was no documentation. And then they exceeded the 12 weeks off and they engaged me and said, "Hey, this employee's been gone for more than 12 weeks and so we're just getting to the point where we need someone reliable in the role."
I said, "Okay, so let's take a look at the documentation." And unfortunately there was none. They had never sent out the certification paperwork, therefore they had not received it back. And so to tell this employee at this time that they've exhausted their leave that we haven't notified them of, I just didn't feel comfortable. So we had to go through the process in arrears.
Now the physician filled out when the original date happened. We were going to have to be at the mercy of whatever the physician did. And we didn't steer the physician, we didn't reach out to them. So we sent the paperwork to the employee. The employee reached out to their physician and said, "When did this medical issue begin?" They actually said it began the year prior and put the date of the first visit. That was fortunate for the employer because then we were able to recognize the original date when this started and show that the employee had exhausted the 12 weeks of leave. And then we gave a new accommodation after that and put them on a separate medical leave.
But without that, if the physician would have said it started in the last two weeks, then we've got 12 weeks of qualified job-protected leave at that point. So the documentation is very important — not so we can go firing people, but because it does begin to put an undue hardship on the employer if we've got someone who has exhausted 12 weeks of leave and we still don't know when they're going to be back on their regular schedule. We had changed this person's role. We'd tried to take them from full-time to part-time, very accommodating company, but just hadn't actually followed the process, hadn't communicated the process, hadn't followed the process that they hadn't communicated. It wasn't in their handbook. No documentation. And so you can see the trouble there. I see that with small to mid-sized businesses very, very often. They start down the path of out of the goodness of their heart, and then they wish they had documentation later.
[13:39] Another thing that I see is not requiring employees to utilize all paid time off before FMLA kicks in. You can or you cannot do this. But regardless, you have to have it in your policy. So if you're going to require that they utilize PTO before FMLA kicks in, you have to state it. A lot of employers are requiring it but they don't have it documented anywhere. "Well, you have to use your PTO." Well, where does it say that? Because it's okay to require it, but we have to have it documented. And that kind of goes back to the handbook conversation that we've had in the last couple of weeks. We just need to have it documented and then make sure that we're holding all employees accountable to what those policies are.
[16:01] Another thing that I've seen come up — I saw a female who was on maternity leave, and while she was gone, it was recognized that she wasn't really pulling her weight in her department. And so another person stepped in and took over the role. She was gone for 12 weeks. In their defense, that's a long time. The job had to be done. But when that person was ready to come back, that employer reached out to me and said, "Her role isn't available anymore." And I said, "Yes, it is, unless you want to get sued. Absolutely, it is." Job protection means we're going to reinstate that employee at the same level of pay, at the same tier in the organization.
So even though they had recognized that somebody at a lower tier could take over her role and so she didn't need to be paid at what was a VP level at the time, her job needed to be protected. So what I walked them through — and it was begrudgingly because they weren't really wanting to hear what I had to say at this point, but I said, "We're going to reinstate her, or don't, but just to let you know that she has every right to sue and will win." So we're going to reinstate her at my recommendation at the same level. We're going to give her at least 30 days to perform at that level. And then if she's not performing at that level, then we're going to talk to her about her performance and put her on a performance improvement plan.
There were a few things that she wasn't doing that the person who had stepped in and taken her responsibilities was bringing to the table. But again, I said, "Did her job description require that? Did she know that? Because if she didn't and that wasn't outlined and then we're holding her to a standard that didn't exist, we've got a problem." So there was a lot to it. It was more complicated than the employer wanted to step through the hoops, but they did the right thing.
And mind you, that employee was operating out of the state of California, which is even more stringent when it comes to employee protections. California, New Jersey, Illinois, New York — those are the most stringent states I see from an employee-friendly perspective. And so you've got to be minding your P's and Q's, whether it's intentional or unintentional. If you break the law, you're breaking the law.
So another aspect of this is either disciplining or terminating someone when they return from FMLA shortly after — you've got a potential retaliation claim on your hands there. And so make sure that you're giving them time to acclimate, settle in, and then you're looking at the performance once they've arrived back. If you didn't address performance before they left, that's on you. You should have handled business back before. I don't care if they were pregnant, I don't care if it was leading up to FMLA or whatever, and you were trying to be kind. It's definitely not kind when they get back to terminate them or give them a disciplinary action the moment they get back. That's just not the way we're going to do things. And if you choose to do that, it's going to look like a retaliation claim — saying we're retaliating against them because they were on leave.
Something that I recommend you not do, but it is unfortunately something that I see employers struggle with because things get — like stones get turned over when somebody is gone. We realize they weren't being timely, they weren't hitting deadlines, whatever it is, or we've seen more value without them. I understand how we get there, but we have to follow the process to make sure that we're giving them a fair shake when they return.
[18:24] The last thing I want to talk about with FMLA is intermittent FMLA. And this one is the most complicated, in my opinion. This is the person who, let's say they have a condition where they go get treatments so they're gone — or it's not treatments, but let's say they have migraines or something like that, and it's not consistent. They're using a half day here and a full day here, and then two full days over here, and then nothing for a month, and then three days over here. You've got to track it and it's cumulative. So tracking all of that, following the calculations, knowing when the 12 weeks is exhausted — I know that's a lot, but intermittent FMLA, again, harder to administer. A lot of people don't track it and they don't call it FMLA, but then later they're frustrated because of the inconsistency of the employee and they want to terminate them. And you just can't do that because it is under FMLA.
FMLA retaliation claims are some of the most winnable plaintiff claims that I see in all employment law. This is something that comes up again and again. And usually there are easy holes to poke through it because the documentation is lacking on the employer side. Employer takes adverse action after an employee uses protected leave — and that's the whole case. That's a case that I see again and again and again.
Now, if you're under 50 employees and you don't want to err on the side of caution and go ahead and utilize FMLA, you still need to document leave. You still need to be consistent. And you still need to know the Pregnant Workers Fairness Act. But does FMLA apply to you if you're under 50? No. But it is a really good solid framework that I recommend that employers go ahead and utilize, especially if they're creeping up toward 50. If you've got 35 or more and you're growing, I'd say put it in your handbook and live by it. Don't have to, but to me it makes things a little bit easier because the documentation, the certification process, and all of that is already laid out for you so you can utilize it.
[20:44] So let's talk about the consistency problems that I also see. So we talked about FMLA and not applying it consistently. We've talked about missing items in our handbook when it comes to the different leaves — and that that's required, the difference between federal and state. But I also see a lot of inconsistency across employees, which are also reasons for lawsuits when I see leave management employment law cases.
Two employees, same request, different answers. And most of the time it's because either one has a strict manager, one has a lax manager, or one is a performer, one is not a performer. So it's easier to say no to the not-as-great performer versus dealing with the performance issue and then handling leave consistently, which is obviously what we need to be doing. I get it, it's hard. We don't mean anything by it. But these two employees — what if they're different races? What if they're different genders? What if they're different religions? What if they're different ages? You've got a problem on your hands at this point because we're not being consistent. Inconsistent leave is one of the fastest paths to a discrimination claim. So it's not really leave claims that I'm seeing, it's discrimination, and the root of it is inconsistently applied leave. It's complicated, but that's where I'm seeing a lot of the discrimination claims triggered — around leave management.
So here are a few of the scenarios. One manager approves bereavement for an aunt, another denies it, and neither one is captured in the policy. I've seen another one where leave has been extended for a high performer and then it's denied for someone else who is struggling with their performance. Also remote leave — or flexible work during leave. I see this be very inconsistent. And it's like, "Well, it's because this employee is more trustworthy and or more productive at home and the other one isn't." If it's given to one and not offered to another, your potential for a discrimination claim in that area is there.
[22:55] And just to remind — I'm 43 years old, so this one kind of makes me laugh because I still feel very young. But now we're getting into age protection. In the 30s versus in the 40s, now we could have a potential age discrimination claim around inconsistency around leave. And let me just call a spade a spade here. Let's say that you've got someone who's in their 50s or 60s and they don't like remote work, but they would like it offered to them if you're offering it to other people. But you also know maybe they're not as effective because they don't like working remotely. They've shared this with you. So you don't offer it, but somebody younger gets to do it and you've offered it to them and you've justified it — "This person already says that they struggle with tech at home, so it's just not feasible for them. And this other person is really tech-savvy, and so they like being able to work from home." It's still an age discrimination claim, or at least the potential is still ripe for it. So you have to think through the process when it comes to scenarios that are creating risk.
So here's the fix: you need a written leave policy that answers every question before you are asked. That's the goal. I know sometimes people are like, "I don't want to document everything because it boxes me in." Or, don't document and have a potential discrimination claim. That's all I'm saying. You want to write the policies — and I said this during my handbook episode — you want to write the policies before the situation arises. Because when the situation arises, you're attaching an employee to it, and you're thinking of an employee and how it will either help you push them out or help you to keep them. So you're attaching emotions to it or desires versus what is fair and just.
So we want to know how much PTO accrues and when. We want to know who approves requests and how far in advance. We want to know what counts as bereavement and for whom. This isn't a "we'll just make the call" — case-by-case basis, no ma'am. How unplanned absences are handled versus planned time off. We want to know the difference between that. What happens to unused PTO? Does it roll over? Does it get paid out at separation? Are you requiring a certain amount of notice to be able to have it paid out? Is it all documented? Every manager in your business should be applying the same answers to these questions. And it's going to be easy for them because it's all documented in the handbook, right? Go back and listen to that handbook episode — I walk through some of this and the why behind some of it.
[25:18] These are things that you need to have answered for yourself, but really for your employees. They need to understand how to utilize the benefits available to them and what the expectations are at your organization. So how do we manage leave requests the most fairly that we possibly can? First of all, it's not a vibe, it's a process. We're handling leave. Leave management is a process that we're following. It's not like seeing how it goes or how it plays out. We need a written request. We can either do this through our HR payroll software or maybe it's an email process. Even a Teams or a Slack message counts as long as it's documented. But I would recommend that you put the hoops in place. Request leave through your HR payroll software. There's X amount of days before it can get approved. If it's for an extended leave, you have to fill out this form, whatever it looks like. But make sure that's followed consistently.
Then the next step in the process is manager acknowledgment. They either approve or deny in writing. That's either clicking an approval or denial button in your HR payroll system, or replying to the Slack message or the email, or signing off on the document that's requested. Then make sure this is all logged in your HR payroll software — not a sticky note that gets misplaced because we've got too much going on and managing leave is just another freaking aspect of our job. I get it.
[27:43] Let's talk about Americans with Disabilities Act. So this is something that I think wholesale, we hear a lot about FMLA, but we forget about the ADA and how that applies. And earlier when I was talking about the person who had exhausted their FMLA, when they had exhausted it, then we sent out ADA paperwork and started working through that process because even though they had exhausted their FMLA, this actually was — I could tell, I knew just because I've been doing this for a long time that this would also qualify as a disability. And I wanted to make sure to protect the employer and protect the employee.
So let's get into ADA just a little bit. Employees with disabilities may be able to get a reasonable accommodation. In this case, we had offered to move him from a warehouse environment to an office admin position. We also offered a full-time position transitioning to a part-time position. So we had offered reasonable accommodations. Is this always feasible at your organization? No.
I had — years ago, I had an employee who was working in a warehouse and she had a physical issue and so she was no longer able to stand or climb ladders. So instead of putting her on medical leave, I said, "You know, we do have a seated position in an office, but you have to test to qualify for that position." All employees, every time we hired an employee, they had to go through the standardized test to get into that position. So you need to go through the testing. She didn't want the position, she kind of threw the test, but I wanted to show that I was giving a reasonable accommodation. So she didn't pass the test, she wasn't able to take that position. Then we put her on an unpaid leave of absence and issued FMLA paperwork and ADA paperwork through the process. So sometimes it works at your place of employment where you can offer a reasonable accommodation. Sometimes it doesn't. But however, it needs to be consistent across the board.
ADA applies to employers with 15 or more employees. So now we're not at the 50 threshold anymore. Now we're down to 15. This is something that a lot of times small businesses don't know. Even if somebody is not FMLA-eligible — meaning they didn't work the 1,250 hours or the 12 months prior, or it's not a large enough organization — extended leave may still be required under the Americans with Disabilities Act. So that's just something that we need to take note of.
And then there's an interactive process. When I say interactive process, that's like HR-speak for: I give you something as the employee, you give me something back, I review it, I give you feedback based off of what you gave me. And I let you know if it applies or it doesn't apply, what I need in addition to the paperwork that you gave me, or if it's satisfactory. An interactive process sounds more complicated than it is. It literally is just an interactive conversation. I let you know what I need. You either give that back to me or you don't. And if somebody doesn't give you back the paperwork that you issue to them for FMLA or ADA, okay — you've asked for it, you gave it to them, they didn't supply it. They're not in the process. They don't hit that policy unless they qualify. And part of qualifying is completing the required paperwork.
[29:58] So let's talk about returning to work from FMLA or ADA or any kind of leave. There are some times where you need a release to return to work and sometimes when you don't. So it kind of depends. And again, all of this information is available at the Department of Labor. There are standards out there. Sometimes it's hard to cut through the legal jargon. So you know that's a great time to contact either a labor attorney or an HR consultant who can walk you through it, who's been down that path. Because I get it, it is complicated, but the documentation is all there online. You just have to dig through some statutes.
We always want to have a documented return date. Whether someone is on ADA leave or just a medical leave or Family Medical Leave Act leave, we always want to know when the return date is. Confirm it in writing. That's your right to know as an employer. When's this person coming back? That's okay to ask. If they need restrictions when they return, you're going to need to know that. Know your accommodation obligations. Usually a physician is going to let you know what any restrictions would be. And then part of the interactive process is you taking a look and determining: can I accommodate this? Is this fair? And is this something that I could do for all employees if it was needed?
And then you can't give their work away permanently while they're out. If they're on leave, the role should essentially be waiting. We've got people picking up the work, but we're not replacing this individual with a full-time hire because the role has to be available to them when they return.
[32:19] So what should we document for every single leave? A few things. Request date — when the leave was requested. What the type of leave is. What dates are approved. Who approved it and on what date. Whether FMLA was designated or ADA, or what type of leave it is. And then you need to keep these leave records separate from the general personnel file, especially if they're medically involved.
Same thing with your benefits enrollment, while I'm talking about it — we don't keep benefits enrollment or health information with performance information. Separate files. Essentially what we're trying to say is, you're not taking any medical or health issues into consideration when it comes to their job performance. So those are separate files.
You don't need a leave administrator. You need a policy and you need to be able to follow it consistently. You need a process. You need to log it. That's essentially it. I know it sounds more complicated than it really is. So the policy is this: it's documenting what you offer and what the law requires. That's your policy. The process is how requests are made, how they are approved, and how and where things are recorded. That's your process. When it comes to logging them, every leave event is tracked in your HR payroll system or in a designated Excel doc, whatever, Google Doc — whatever that looks like for you. Make sure it's secured. And then we're logging it every time. If they take intermittent leave, if it's a one day, a half day, if we sent the paperwork and we're waiting for it back, we've got a date there. We're just tracking the entire steps of the process.
We want to review our policy once a year, making sure that our state hasn't made any changes, that nationally there haven't been any changes. Leave law is one of the fastest-changing parts in employment law. Just like I said, last year in Missouri at one point it was like, "Okay, you have to have a sick bank." It got ruled out quickly. I know people have mixed feelings on this, but it got approved and then it got overturned by the governor. So essentially from April to August, it had to be in place and then it was kicked out — but it really was put into place knowing that it was going to get kicked out. So it was kind of a mess and a bummer of hardship on small businesses because they implemented something and then had to turn around and change it. It's just complicated. It's just paperwork and it takes extra time. I get that. But we need to be tracking that.
[34:38] And then if you have managers running their leave independently, which I wouldn't recommend, but if you don't have an HR pro or a payroll person helping them with this and you've got your managers kind of operating in the HR seat a little bit here, they need to know that their actions can cause a lawsuit. That retaliation is real. That consistency is important. And that discrimination is almost imminent any time that we're not applying things consistently. One manager's well-meaning, yes — well-meaning can absolutely crap on your process and create a liability for the whole organization. And managers need to understand this.
So many times I hear people say, "Well, I'm just a manager, I can't know all of the HR stuff." Well, that's part of your job. I'm not saying you are the HR professional, but you need to know what's in the handbook. You're asking your employees to live by the handbook. Why in the Wild West would you as the manager not understand what's in your handbook and then make sure that you're holding yourself and others accountable to it? You're asking your new hires to sign off on that. It doesn't make any sense to me. Make it make sense, you know what I mean? Managers need to know what's in that handbook and need to know how to consistently apply it. And if that's too hard, then leading really isn't for you. You need to be there for the employees for clarification purposes, and then also there for your employer for accountability purposes. So managers, this is on you just as much as anyone else.
[36:46] So here's the one action that I want you to take. I want you to make sure that you have a bereavement leave policy. I just had a client the other day decide that they were going to delete their bereavement leave policy out of their handbook because they had it in there as a case-by-case basis. I recommended that we don't have anything that says we're going to handle things on a case-by-case basis because it pretty much says we have the potential to discriminate. It's just easy to poke holes in that. So they decided to delete their bereavement policy. That's not what I'm recommending.
As an employee, I need to know what happens if somebody in my family dies — or worse yet, somebody in my family died. Do I get to take off work paid, or is it unpaid, or is my job protected, or what happens? I shouldn't have to be asking someone when I'm in my most horrible moment. If I've got a parent that passes away, I don't want to have to be reading a handbook. I need to know that. I shouldn't have to go to my manager and ask for a blessing here. I just want to know what I'm able to do and I want to be able to do it.
So take a look at your bereavement policy. And if you're like, "Well, I'm just afraid that it'll be the wild, wild west if we say everyone gets three days" — make it very clear. Biological parent, stepparent, biological child, stepchild, spouse, significant other, extended family — you get to decide. You get to decide. Bereavement leave is not a requirement. Documenting it is a good employer step to take. You don't have to give bereavement leave, but if you're going to allow for it, just let it be clear so your employees know what to expect.
So take a look at your bereavement policy. How many days do they get off? For what relationships? And who approves it? If you can't answer that consistently, then it's the first policy that you need to write when it comes to leave. But there are required-by-law leave policies that you have to have in your handbook. I recommend you take a look at those and go back to my handbook episode. I go through the five required policies that every employer needs to have based off of federal and state law. And then I go into some recommended policies as well.
Don't forget about my HR Foundations course where you can go deeper on all of these things: saltandlightadvisors.com/hr-foundations. Of course, we've got the book, The HR Easy Button. I highly recommend that you take my free mini HR audit. It's real quick. It gives you a score at the end and helps you to understand: are you at a risk when it comes to your HR foundation? Do you need some attention, or are you doing great? It gives you a score placed in one of those three buckets. And it's free. So I recommend go to saltandlightadvisors.com/hr-audit and you can find the link for that there.
[39:04] So next episode, which is the sixth part in this series, is around performance and feedback. We're going to talk about setting expectations, giving real feedback, and handling underperformance before it becomes a termination. So you're not going to want to miss that. If you haven't already, please subscribe wherever you're listening to this — Apple, Spotify, if you're watching it on YouTube — please make sure to subscribe so you get my episodes every single week. And I'd love it if you would share this with somebody in your organization who's maybe the office manager, somebody helping manage these things with and for you, or a peer that you know is also a small to mid-sized business owner and is struggling through HR just as much as you are. Because hopefully this can bring some value.
And of course, you can always go to saltandlightadvisors.com/contact and reach out to me directly and we can get a call scheduled. I would love to talk through your HR needs with you and just help you navigate this. It's the whole reason why I launched my business. I had worked for mid-size and large organizations for years and I had seen — back when I was an insurance COO, we worked with a lot of small to mid-sized businesses and they were always asking my benefits client managers HR questions. And I would say, "Hey, legally we can't answer that." But I started giving my cell phone number out because I wanted to be able to help these small business owners. And I realized when it was time for me to go out on my own, this is exactly what I needed to do. I needed to support small to mid-sized business owners and help them get access to high-level HR strategy without having to pay a COO a quarter of a million or half a million dollars, because that doesn't make sense for a small business — but you still have employees, you still have employer responsibilities. And saying that you're small and you're the founder, you can't do everything, is just not going to protect you if it comes to a discrimination case.
I would love it if you would reach out. Friends, don't waste the chaos of HR. Embrace it. We'll see you next week.
