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Q - A: Answers to your leave questions

January 2021 employment law letter
Authors: 
Mark Adams and Maggie Spell, Jones Walker, LLP

Q Are there restrictions on disclosing internally the reason for an employee's leave of absence if we use a high-level reason? The reasons we use in our HR software include "employee health condition," "baby bonding," "personal leave," "pregnancy/maternity," and "active duty."

In some cases, yes. Depending on the source of the information, disclosing medical or health-related reasons for an employee's leave of absence could be a violation of the employee's privacy rights under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Thus, the better practice would be to use a broader, more general term to designate all types of medical or health-related leave.

Q Can we prorate annual bonuses based on time away from work because of leaves of absence? Can we be more generous in prorating bonuses for Family and Medical Leave Act (FMLA) leaves and less generous for non-FMLA-eligible personal leaves?

Yes, as long as you don't discriminate against or disfavor employees who have taken legally protected leave such as that covered by the FMLA or the Uniformed Services Employment and Reemployment Rights Act (USERRA), you can prorate goal-based bonuses the employees would have earned but for having taken leave. In other words, as long as you prorate bonuses for all types of leave, you can prorate for FMLA and USERRA-protected leave. Likewise, since nondisabled and nonmilitary employees aren't protected classes, there's no prohibition against treating employees who take FMLA or USERRA-protected leave more favorably than employees who take other types of leave when it comes to prorating bonuses.

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