While the Family and Medical Leave Act (FMLA) offers basic guidelines for medical leaves, many forward-thinking companies want to do more to take care of their employees. However, crafting your own medical leave policy can be daunting. That’s why we worked with our founding legal Counsel, Frank Alvarez,  to create an interactive medical leave policy generator to give you a starting point. 

Before joining Cocoon, Frank counseled employers for more than 30 years on ways to operationalize leave, accommodation, and other employment laws. We asked Frank to include questions in the policy generator that employers might typically consider when developing a relatively basic but effective medical leave policy. Hopefully, this gets you started in drafting a medical leave policy that works for your company and its employees.

As a reminder, Cocoon is not a law firm and, although Frank is an attorney, he is not your company’s attorney, and nothing in this blog or the policy generator is intended to provide you legal advice. Therefore, make sure to review point 5 in the process below!

Get started with the template by filling in your details here: 

🪄 Get the policy generator

✏️ Get the sample policy language

‍

Now that you have a starting point, read through each section below to continue revising your policy.

How to draft and launch a great medical leave policy:

1. Get grounded about medical leave 

Organizations who want to go above and beyond the basic coverage offered by the FMLA should reflect on why it’s important to do so, and ensure this comes through in the policy and its implementation. Your policy reflects your company’s concrete stance on what employees can expect for a medical leave. 

Your policy also sets employee expectations about how and by whom their medical leave will be handled. So before launching, plan on offering trainings to People team members and managers about your policy, the processes it entails, responsibilities and obligations for each party, and a range of use cases they’re likely to encounter. Talk tracks can be very effective to ensure HR and managers respond to employee questions with credibility and empathy. Now is the time to start having these conversations and trainings so everyone can grounded in the why and the how. 

2. Define who’s eligible and other leave benefits and obligations

Thinking through the different eligibility criteria and medical leave scenarios helps you avoid miscommunications and unintentional exclusions or policy consequences. Here are some common eligibility parameters and benefits covered in a medical leave policy (which are included in the policy generator too):

Common eligibility parameters

• Employee tenure/hours of service
• Full-time vs. part-time vs. short-term
• Exempt vs. non-exempt
• Geographic considerations (including worksite size)

Cocoon benchmark: 57% of employers who use Cocoon don’t have a tenure requirement for company paid medical leave, meaning employees are eligible for their company’s medical leave policy from the first day of employment.

Medical conditions covered by the policy

The FMLA defines a serious health condition as “an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider, involving a period of incapacity that prevents them from being able to work.” Some examples might include:

• Ongoing chronic condition that might require periodic medical visits on a regular basis or cause prolonged periods of illness (e.g., Crohn’s disease)
• A sudden or temporary health condition (e.g., recovering from an infection or surgery)
• A mental health-related leave
• A period of incapacity related to pregnancy, childbirth or related medical conditions
• A work-related injury (for which employees might receive workers’ compensation benefits)
• A serious long-term illness that might entitle an employee to receive short and/or long term disability benefits 

Benefit offerings

• Time — how long is their medical leave? Must they take leave in one continuous block of time or do they have rights to intermittent leave/reduced leave schedules?
• Pay & pay sources — how much will they get paid while on leave?  Where does this money come from (e.g., state, insurer, employer, or a combination of these sources)? Does pay “top up” and coordinate with state or private insurance benefits? Is employer pay conditioned on employee’s establishing that they applied for and cooperated with all available state and private insurance benefits? How is pay calculated? Does it include commissions or overtime pay, or is it limited to an employee’s base wages?  
• Access to health/non-health benefits (e.g., rights to continue health insurance during medical leaves, or to access tuition reimbursement or other benefits, and provide guidance on where employees can learn how medical leave impacts rights to continued vesting of stock options or other various benefits)
• Protected time off — whether and to what extent will you commit to restoring an employee’s job if they return during or at the end of their authorized leave period?  Will you commit to restoring them to their same job, an equivalent position, or something else?

Cocoon benchmark: Across all companies the median medical leave policy is 4 weeks, with top up pay.

How your policy interacts with the FMLA

Most employers run company medical leave concurrently with FMLA or other statutory leaves — however, remember that FMLA provides unpaid leave while your company may provide paid leave and/or paid (and possibly unlimited) PTO. This can lead to some tricky policy decisions. You might choose to include more serious or longer-lasting medical conditions under your medical leave policy, while allowing your PTO policy to address less serious and temporary medical conditions. 

Another important consideration is that the FMLA addresses parental leave, caregiver leave, and medical leave under the same roof, meaning the eligibility criteria are the same for those FMLA leave types. You should think carefully about the eligibility criteria you use in your medical leave policy. Having more relaxed eligibility criteria will benefit employees but also potentially create unintended inequities as employees who begin leave ineligible for FMLA eventually grow into additional FMLA medical leave. As you consider policy goals (including talent acquisition and retention), you might decide to vary eligibility criteria or other policy rules for parental, caregiver, and/or compassionate leave policies (and we have policy generators or text for all three). 

3. Ensure legal HR compliance and alignment with company policies and benefits

Now that you know who’s eligible for what, that needs to be reconciled with federal and state laws, as well as your company’s benefits and policies to ensure legal compliance. This can start to get tricky — especially if you operate in multiple states — as laws vary by location. Your policy should recognize overlapping legal obligations and aim for consistency between laws and company policies. For example, clarifying that PTO cannot be used before or after a leave.

Common statutory benefits and company policies to consider

• Federal FMLA
• State paid/unpaid leave
• State disability benefits
• Private insurance benefits
• Voluntary additional employer pay (e.g., top-up pay)
• Health insurance
• Other non-health insurance benefits (e.g., accrual of PTO, continuation of pension, access to mental health benefits, etc.)

Questions to ask

• Do you match or exceed these benefits and in which cases?
• Will you provide the same or more than what you are obligated by law?
• Will you provide a basic level regardless of employee location?
• Will your policy run concurrently with overlapping statutory benefits or be “stacked” on top of them?
• What processes must employees follow to request company medical leave?
• Must employees provide additional or different medical certifications to support company medical leave requests?
• What, if any, return-to-work certifications will you require? 

4. Clarify responsibilities for each stakeholder 

The sooner you document responsibilities, the more transparent your policy will be, which will help your HR team, managers, and employees understand the policy and stay legally compliant and in the bounds of your company policy. Define:

• Who are your stakeholders? (internally and externally)
• What are leave-takers’ responsibilities? (e.g., many employees may be required to submit a certification with specific details from a healthcare provider in support of requesting FMLA coverage)
• What are others’ responsibilities? (People team, healthcare and insurance providers)

If you manage your leave with Cocoon, we’ll map a lot of this out for you to streamline next steps, owners, and deadlines. For example: 

• Employees get information about required medical certifications, dates, and deadlines
• Managers get notifications about employee leave dates (when they're leaving and returning)
• Admins admins have visibility into claims progress for all employees on leave

5. Get your legal team to review 

While our policy generator template gives you a starting point, you still need a legal expert to go over it with a fine-tooth comb before launching anything. They can ensure your policies are in line with state and federal guidelines and that they’re using the correct language. 

There’s a lot to consider, but with our policy generator and this walkthrough, you’re off to a good start. Once your policy is launched, Cocoon is excited to help you implement it, and to help your employees plan and manage their medical leave should the time come.