People Ops pros with their fingers on the pulse of the industry hear the chatter. They see the headlines. They’re waking up wondering if they’ll need to send a message of support to their counterparts from other organizations who have to do the worst part of the job, instituting layoffs.
We see you. We understand that the toll layoffs can take on your mental health extends well beyond the dust settling. In fact, a recent study showed that roughly 98% (!) of People Ops leaders have felt burned out in the past six months, 94% have felt overwhelmed, and 88% say they dreaded going to work. The mental tax on layoff survivors is real.
This isn’t an article to tell you what you already know. You don’t need to hear it from us that layoffs friggin suck. Whether they’re happening in your organization or you’re reading about them in the news, nobody wins.
What you do need to know is how a leave of absence fits into the layoff landscape so that your employees stay protected and your organization stays compliant.
Employee layoff guidelines while on leave of absence
Before we get into this, we should be clear that this article does not constitute legal advice. If your organization is going through layoffs and you have an employee on leave we recommend you consult with appropriate legal counsel.
Now that our own legal and compliance department can exhale, let’s continue.
If your organization has been hinting at the L word, it’s important to understand what this can mean for your employee population who have taken a leave of absence. There are many types of leaves an employee can take for a variety of reasons, but the main distinction you need to be aware of is that some leaves are job-protected and others are not.
Leaves of absence that AREN'T job-protected
If an employee takes a leave of absence that isn’t job-protected, employers can generally lay them off without running afoul of leave laws.
Employees in this scenario might include those who are taking caregiving or bonding leave that isn’t protected by FMLA or a state leave offering job protection. Other situations where there typically isn’t job protection include non-medical personal leaves, sabbatical leaves or employer-provided PTO.
Leaves of absence that ARE job-protected
FMLA leave: If a leave is job-protected by FMLA, that employee still might be subject to layoffs during their time off. It is illegal, however, for an employer to lay off an employee because of the FMLA leave itself.
Per the Code of Federal Regulations, “An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.”
So can an employee be laid off while on FMLA? Yes. Will your organization be in legal (and potentially costly) hot water if you lay that employee off without proof that the employee would have been laid off regardless of being on FMLA? Yes.
Americans with Disabilities Act (ADA): The ADA makes it illegal for an employer to discriminate against a qualified individual with a disability. Similarly to FMLA, if an employee is on an ADA leave of absence and is being subjected to layoffs, it’s imperative that the employer can prove that the reason for the layoff isn’t as a result of the ADA leave itself.
Pregnant Workers Fairness Act (PWFA): The PWFA was passed at the end of 2022 and goes into effect on June 27th, 2023. The PWFA requires employers with 15 or more employees to provide reasonable accommodations to employees affected by pregnancy, childbirth or related medical conditions. Like the ADA and FMLA, an employer must prove the layoff isn’t a result of taking leave under the PWFA specifically.
Job-protected state leaves: Outside of the Federal programs, several states have job-protected leave programs as well. California, for example, has the California Family Rights Act (CFRA), which provides eligible employees with up to 12 weeks of unpaid, job-protected leave to care for their own serious health condition or a family member with a serious health condition, or to bond with a new child. The same rules apply here, as an employer would need to have proof that the employee’s termination would have occurred whether the employee used CFRA or not.
Documentation is vital during layoffs
Layoffs are a very heavy, and very real topic to discuss in today’s macroeconomic environment. While employers might be looking toward layoffs in times of desperation, it’s important to know that some employees require more attention than others, and not doing so might cause further unintended financial consequences in the form of legal battles.
If an employee is on a job-protected leave, it’s vital that you understand the laws of the jurisdiction that employee works in (for state programs) and that adequate documentation be established to prove that in fact that employee would have been laid off regardless of them taking a job-protected leave.
About Tilt
Tilt is leading the charge in all things leave of absence management through easy-to-use tech and human touch. Since 2017, our proprietary platform and Empathy Warriors have been helping customers make leave not suck by eliminating administrative burdens, keeping companies compliant, and providing a truly positive and supportive leave of absence experience for their people.
