A Leave of Absence agreement is a written agreement between an employer and an employee. It documents the terms and conditions of an employee’s leave of absence from a business. A leave of absence agreement grants an employee an absence from their job for a specific length of time, so they may attend to other matters. The employer agrees to hold the employee’s job (or, in some cases, a similar position) for the employee upon return from leave. The employee agrees to return at a specified time.
Depending on the facts and circumstances of an individual case, a leave of absence agreement may include additional requirements that are fact-specific. Some examples include:
- A requirement the employee document job-specific training while on leave;
- Documentation of a medical need; or
- Regular updates regarding the purpose of the leave.
Different Types of Leave
There are generally two different types of leaves of absence contemplated by a leave of absence agreement. These include extended leave and intermittent leave.
Extended leave refers to a leave of absence for several weeks or months to address a life situation, such as the birth of a child, the need to settle the estate after the loss of a parent, dealing with illness, or other situation approved by the employer.
*Please note that Intermittent Leave is not covered under the scope of our LegalTemplates document.
Intermittent leave, on the other hand, is a request for either a reduction in hours per day, or a reduction of days worked for reasons such as ongoing education or training. For example, an employee may request intermittent leave where they work 6 hours, instead of 8, each day for the next two months.
In the case of medically related intermittent leave, the request may involve attending a standing medical appointment, or a shorter work day while recovering from an illness, such as cancer.
When a Leave of Absence Agreement is Needed
Leave of absence agreements benefit both employer and employee in different ways.
When Employers Need a Leave of Absence Agreement
When a valued employee indicates a desire to leave employment for personal reasons, you as an employer may wish to execute a leave of absence agreement. This agreement offers the employee assurances you will hold their job for them while they are away. You can set the terms and conditions, including, for example:
- The length of time the agreement is valid;
- Your expectations about employee conduct during the leave (for example, if the employee requests intermittent leave to attend a college class, you may require the employee actually attend class, and/or hand in assignments on time, and/or receive a passing grade);
- Documentation required, if any;
- Any competency testing or proficiency testing to be performed upon return from a leave; and,
- The conditions which convert a voluntary leave to a termination.
Incorporating the above definitions and parameters will help protect your business by clearly defining the obligations and responsibilities of both parties.
Defining the nature and length of a leave of absence is an excellent first step when creating a leave of absence agreement. Keep in mind that the more detailed you are, the more effective and comprehensive it will be.
When Employees Need a Leave of Absence Agreement
If you are planning to take a leave from employment, a leave of absence agreement protects you and your position in the company. Leave of absence agreements are contracts. They are a written guarantee you won’t lose your job, your seniority, or your place in the company as a result of your leave.
It also details expectations about benefits, conditions that must be met during the leave and immediately prior to return from leave, and how an employee’s leave may transform into a termination.
For Both Employers and Employees
A leave of absence agreement defines the terms and conditions of a leave. Any time an employee takes a leave of absence, a written agreement defining the terms of the leave and the expectations of both parties protects the rights of both.
Consequences of Not Having a Leave of Absence Agreement
Without a leave of absence agreement, employees have no guarantee their job, or a similar position, will be available for them when they are ready to return from leave. Employers face uncertainty about when or whether an employee will return.
Without reducing the agreement to writing, unintended consequences often present themselves. Failing to use a written document detailing the terms of the leave, leaves the initial intentions, and agreed-upon obligations, to one’s memory, making it highly susceptible to change or breach.
For example, miscommunication may result in the loss of benefits, if the employee fails to pay an employer their agreed-upon share. Alternatively, an employee may not understand a doctor’s note is required in order to return to work, resulting in unexpected delays.
Disputes regarding the terms of the leave may result in unhappy employees, employers short of staff they need to complete the work, and, in some cases, lawsuits.
The time it takes to execute a leave of absence agreement is significantly less than the time and heartache (not to mention cost) of litigating an issue which could have been addressed in an executed written agreement.
Most Common Uses for a Leave of Absence Agreement
An employer has the option of using a leave of absence agreement in any situation they believe merits granting a leave of absence. However, the most common reasons for using a leave of absence agreement include the same reasons listed under the Family and Medical Leave Act (FMLA). Of course, the FMLA only covers employers and employees who meet certain criteria.
Reasons for a leave of absence include:
- The birth of a child;
- The adoption of a child;
- A child placed in the home in foster care;
- An employee dealing with a serious health condition; or
- A situation arising out of an emergency related to a spouse, child, or parent on active duty status.
Other situations where an employer may, but is not legally required to agree to a leave of absence include:
- A leave to provide time to handle the estate after the death of a parent;
- A leave to spend time with and care for small children during the summer months;
- Taking a class or training to advance their career;
- Attending school abroad for a semester;
- Care for a loved one not covered under the FMLA, such as for a roommate or dear friend; or
- Extended bereavement leave.
Keep in mind that an employer is not required to offer extended bereavement leave. However, if an employee wanted to provide this type of leave, they are free to do so.
In addition to federal law, all states have state-specific leave laws. These laws provide for various situations, such as leave for parents to attend school-related activities, or recovery time for bone marrow donors.
What Should be Included
Dates of the Leave
For extended leave, a leave of absence agreement should include both the start date and the anticipated end date of the leave. If the leave length is uncertain, such as when dealing with a health condition, an end date should still be included, along with any language detailing extensions.
Extension Details of the Leave
In situations where an extension may be required, such as when dealing with an illness, extension details should be addressed fully, including:
- How: how an extension should be requested (including whether the request must be in writing);
- Timeframe: the date of the extension request in relation to the anticipated end date of the leave;
- Parties to the extension: identify all contacts who must receive notification regarding any requested extension;
- Other terms: whether other terms and conditions of the leave (such as who pays for benefits, the accrual of vacation, etc.) change or remain the same in the event of an extension;
- Resignation: if the extension request does or may constitute a resignation; and
- Modifications: the circumstances, if any, under which an extension request modifies the employer’s obligation to hold the same position, as opposed to another position within the company.
Other Details Regarding Leave
Additionally, the following details about the leave of absence should be included:
- Whether the employer expects reports about the status of the leave on an ongoing basis;
- If the employer expects a physician’s statement, either during ongoing leave or as a condition of returning to work, as well as the contents of the statement (i.e. “released back to work,” “no longer contagious,” etc.); and
- The consequences if the employee doesn’t meet the terms and conditions of the agreement.
Details about Benefits (If Any)
The agreement should clearly address and delineate all details about job benefits during the leave. Such benefits include:
- Whether the employee must exhaust paid vacation and sick time before taking unpaid leave;
- Whether vacation and sick time still accrue during the absence;
- If vacation and sick time still accrue, and if they do, whether the rate is the same or different than accrual during full-time employment;
- Whether the employee still qualifies for health, dental, life, and disability insurance;
- Who pays for the benefits such as health, dental, life, and disability, and in what proportion;
- Whether the leave impacts any pension plan contributions made by the employer;
- How the employer expects employees to pay their portion of the benefits, (if applicable); and,
- The consequences of the employee not paying their portion of the benefits.
Details about the Job Position
A leave of absence agreement should specify whether an employer anticipates holding the employee’s current job. Additionally, the agreement should detail whether there is a possibility that no position will be available when the employee is ready to return.
If this is a possibility, the agreement should address alternatives. Will the employer offer them the next available position? Will the employer consider them for the next available position without application? Both the employer and the employee should know the benefits and the potential risks involved.
Sometimes, a given benefit or condition does not apply. Addressing the issue is the best approach, rather than remaining silent on any issue where the parties may disagree.
Leave of Absence Agreement Sample
Here’s what a standard leave of absence agreement looks like:
Leave of Absence Agreement
|State of _________________|
|LEAVE OF ABSENCE AGREEMENT|
This Leave of Absence Agreement (the “Agreement”) is made as of this ______ day of _______________, 20______, (the “Effective Date”) by and between:
Company: ________________________ (“Company”), located at ______________________________
Employee: ________________________ (“Employee”), residing at _____________________________
Employee is presently serving as ________________________ [Position]. In consideration of the mutual covenants and agreements herein, the parties agree as follows:
- Leave. Employee seeks a leave of absence due to: (Check one)
☐ Personal issues
☐ Other: _____________________________
The Company has granted the leave of absence starting on the date of ____________________, 20______ until ____________________, 20______. Employee will return to the Company on the next business day.
- Compensation. During the leave of absence, Employee will: (Check one)
☐ Continue receiving their salary.
☐ Receive __________% of their normal salary.
☐ Not receive any salary
Employee will not hold any position or titles while on the leave of absence. Employee is not entitled to any benefits during this time off ( ☐ except for group medical benefits) unless required by law.
Seniority Rights & Stock Options (Check all that apply)
☐ Employee’s seniority rights will be unaffected by the leave.
☐ Employee’s stock options will be unaffected by the leave.
- Employee Covenants. In consideration of continued employment with the Company, Employee covenants that during their leave of absence from the Company that Employee will not engage in, own, or control any business or be employed in any capacity. Employee will not solicit the business of any client of the Company during this time.
- Termination. Failure to comply with the terms of this Agreement will result in termination of employment.
- Injunctive Relief. Employee acknowledges that breach of any of the covenants will give rise to irreparable injury to the Company. Employee acknowledges that such injuries are not adequately compensable by damages and that injunctive relief against such breach is available as a legal remedy. Employee agrees that the covenants herein are necessary for the protection of the Company’s legitimate business interests.
- Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, heirs, administrators, executors, successors and permitted assigns.
- Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected and shall continue to be valid, legal and enforceable as though the invalid, illegal or unenforceable parts had not been included in this Agreement.
- Governing Law. The terms of this Agreement shall be governed by and construed in accordance with the laws of the State of _________________, not including its conflicts of law provisions.
- Dispute Resolution.(Check one)
☐ Court litigation. Any suit involving any dispute or matter arising under this Agreement may only be brought in a United States District Court located in the State of _________________ or any State Court in _________________ having jurisdiction over the subject matter of the dispute or matter. All parties hereby consent to the exercise of personal jurisdiction by any such court with respect to any such proceeding. All parties waive, to the maximum extent permitted by law, any right to trial by jury in connection with any action or proceeding relating to this Agreement.
☐ Arbitration. Any dispute arising out of or related to this Agreement that the parties are unable to resolve by themselves shall be settled by arbitration in the State of _________________ in accordance with the rules of the American Arbitration Association. The written decision of the arbitrator(s), as applicable, shall be final and binding. Judgment on a monetary award or enforcement of injunctive or specific performance relief granted by the arbitrator(s) may be entered in any court having jurisdiction over the matter.
- Headings. The section headings herein are for reference purposes only and shall not otherwise affect the meaning, construction or interpretation of any provision in this Agreement.
- Entire Agreement. This Agreement contains the entire understanding between the parties and supersedes and cancels all prior agreements of the parties, whether oral or written, with respect to such subject matter.
- Amendment. This Agreement may be amended or modified only by a written agreement signed by all of the parties.
- Notices. Any notice or other communication given or made to any party under this Agreement shall be in writing and delivered by hand, sent by overnight courier service or sent by certified or registered mail, return receipt requested, to the address stated above or to another address as that parties may subsequently designate by notice and shall be deemed given on the date of delivery.
- Waiver. No party shall be deemed to have waived any provision of this Agreement or the exercise of any rights held under this Agreement unless such waiver is made expressly and in writing. Waiver by any Partner of a breach or violation of any provision of this Agreement shall not constitute a waiver of any other subsequent breach or violation.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date first written above.
|Company Representative Signature||Company Representative Full Name|
|Employee Signature||Employee Name|
Leave of Absence Agreement FAQs
I would like to spend three weeks hiking and camping. Can I make my employer sign a leave of absence agreement?
No. Hiking and camping are not activities covered under the FMLA, nor the American Disabilities Act. Your employer is not required to grant you unpaid leave for this activity. However, you could request an unpaid sabbatical, since there is nothing prohibiting your employer from entering into an unpaid leave agreement if he or she is so inclined.
I want to use my saved vacation time to help a family member in a time of need. Do I need a leave of absence agreement?
No. A leave of absence agreement is designed for situations where you are taking leave not covered by sick time, vacation time, or personal leave time.