Personal Disability

“I just had another employee asking for a personal leave because she’s under a doctor’s care. Do I have to give her the time off?”

Your HR Survival Tip

This can be a bit tricky and your options depend upon the number of employees you have. If you have fewer than 5 employees, this is a personal leave of absence and that will be this article’s focus. In companies with 5+ employees, the leave is likely to be protected for up to 12 weeks under CFRA (California Family Rights Act) and/or FMLA (Federal Medical Leave Act).

As a first step, ask for a doctor’s note stating the employee will be unable to work from [start date] to [end date]. A doctor usually provides an initial note citing anywhere from 2 to 6 weeks. Make it clear to the employee that they will be expected back to work on [end date] or will need to provide another doctor’s note requesting an extension.

Provide them with the brochure about California’s state disability program and let them know it is their responsibility to file a claim. If the employee has any sick time remaining, use the rest of it for work time missed. Companies frequently approve the initial leave request and, if you do, there is an assumption you will hold their job. However, we like to send out a certified letter explaining certain things related to the leave:

• Their doctor’s note has cited the day they are expected to return to work but the doctor will be expected to provide another note requesting any extension.
• Health insurance, if any, will continue but the employee must continue paying their share of any premiums. Failure to pay their share may result in coverage stopping but COBRA would be offered. (The timing of COBRA is dependent on a policy in your Employee Handbook.)
• Explain any job protections the employee may have.
• Note how often you want to hear from the employee, if the leave will be over a couple of weeks.
• Prior to returning to work, they will need a doctor’s note clearing them to return to work.

California’s EDD (Employment Development Division) will send you a 2-sided form that’s printed in red ink. This form asks for basic information they will use to compare with the information on the claim the employee filed. EDD will also notify the employee’s doctor of the claim and the doctor must provide EDD with the medical backup for the disability.

If an extension of the leave is requested, it’s time to talk with your HR consultant or attorney about your options. Even though there may not be job protection, you don’t want to just jump immediately toward termination. Every situation is different and you want to be able to fully justify any action you take.