Some employers provide a leave of absence for situations that do not fall under the protections of any state or federal employment law. This type of leave is sometimes referred to as a Personal Leave of Absence (PLOA). Generally, when an employer enacts a PLOA policy, approval for the leave of absence is often subject to management’s “discretion.” This discretion, or even the language of the policy itself, can cause a problem for the employer.
For instance, when an employer is forced to defend a workplace discrimination claim, generally the employer’s business records will be subject to discovery. Based on a review of these records, the employee may be able to convince a court that a leave of absence policy, in practice, is evidence of discrimination. See Byrd v. Lakeshore Hosp., 30 F.3d 1380 (11th Cir. 1994) (denying pregnant employee the benefits of or terminating employee for availing herself to employer’s policy allowing time-off for “personal illness, injury, doctor’s appointments” may be evidence of discrimination).
Even worse, the employer’s PLOA policy itself may be facially discriminatory if the policy expressly limits statutorily protected employees. See Maddox v. Grandview Care Center, Inc., 780 F.2d 987, 990 (11th Cir.1986) (leave policy limiting maternity leave to three months while allowing leaves of absence for illness to be granted for indefinite duration was discriminatory on its face).
Ultimately, even if the PLOA policy is facially neutral, management’s decision to grant a PLOA in certain circumstances, and deny a request in others, generally adds a large degree of subjectivity to the decision-making process. Even if personal bias is not a driving factor in management’s decision-making, if by chance it simply appears that one group of statutorily protected employees is not receiving equal treatment, that may subject the employer to liability that could have easily been avoided.
An employer can help shield itself from these unwarranted claims by altering its PLOA policies and practices, or even omitting the PLOA policy all together. Retaining an attorney to evaluate, draft, and review employment policies, both as written and in practice, puts that employer in a better position to defend itself from employment discrimination lawsuits.
About Attorney Michael J. Gore
Michael Gore concentrates his practice in the areas of construction, securities, and employment litigation in both state and federal courts. While attending law school, Mr. Gore worked as an intern in the securities department of Avelino & Associates, P.C. He also interned for the New York State Office of the Attorney General in the Investor Protection Bureau, under Andrew Cuomo.