DESCRIPTION: Non-FMLA Leave of Absence
Absences covered under Non-FMLA Medical or Personal Leave will not be counted as occurrences of absenteeism under Vanderbilt University's attendance policy. However, employees may be subject to discipline up to an including employment termination if, during their leave, they engage in activities inconsistent with the stated purpose for the leave. For example, employees may be prohibited from engaging in other similar employment during leave. Misrepresentations or any act of dishonesty related to these leave will also be grounds for discipline, up to and including employment termination.
What does this mean for you? First, you need to review your leave of absence policy. If you have a fixed cut off, you should amend the policy to indicate that the amount of leave will be determined on a case-by-case basis, depending on the circumstances of each case. If you wish to have a fixed cut off, you should indicate that extensions are available beyond the cut off, and will be considered on a case-by-case basis. Second, you need to develop a set of forms to be used when an employee requests a leave of absence, beyond his or her FMLA entitlement. These would include a non-FMLA leave of absence request form and a checklist or set of guidelines to be used in determining whether a particular request would constitute an "undue hardship." The checklist may vary depending on the type of work your company does and the size of your company, but would generally include things such as: (a) the amount of leave that is being requested; (b) the likelihood of the employee being able to return as of that date; (c) whether the request for leave is supported by adequate medical documentation; (d) the nature of the employee's job and job duties; and (e) the amount of disruption that would be caused by holding the job open, including whether the job duties can be reallocated to other employees, the ability to fill the position with individuals from a temporary agency, and the cost of doing so. Generally speaking, the greater level of skill required to perform the job and the greater importance of the job, the less likely it is that the job can be held open for any significant period of time. Third, you need to communicate your policies and forms to the persons who will be responsible for making leave of absence decisions. In smaller companies, with limited numbers of departments, this will be relatively easy. In larger organizations, with multiple departments and multiple sites, this can be more challenging. Fourth, you need to communicate your policies to your employees, as that will shift the burden to them to initiate the leave of absence process, and provide the information needed to evaluate the request. Any employee who fails to make a request or fails to provide information needed to evaluate the request, will be hard-pressed to claim that his/her ADA rights have been violated.
The employee must submit a completed Certificate of Health Care Provider form if more than five days of consecutive absence are anticipated. If such a leave is granted, the amount of leave will be determined between the supervisor and the employee. The employee’s position or equivalent position may be held for a specified time determined by the supervisor but in no case for longer than 12 weeks. The maximum non-FMLA leave is 12 weeks in a 12-month period, and the maximum combined FMLA and non-FMLA leave is 26 weeks in a 12-month period. Category 2 and Category 3 employees who are on a personal medical leave for more than fourteen (14) consecutive days may qualify for short-term disability benefits.The Non-FMLA Leave Request letter is sent to an employee when the employer has knowledge of need for continuous absence not eligible for FMLA is not available. This letter is sent in conjunction with the Non-FMLA Leave Request Form.Answer: You have discretion in setting your personal time off policies to continue or discontinue health coverage during a non-FMLA leave as long as it complies with COBRA and is applied consistently across organization in a nondiscriminatory manner. The start of a COBRA coverage period for a non-FMLA leave is triggered by a loss of health coverage under the group plan; this will depend upon how you set your benefits continuation policy/practice for leaves of absence.The FMLA Exhaustion letter should be sent to an employee when calendar year FMLA is anticipated to exhaust within 4-6 weeks and information is necessary to determine needs beyond FMLA. If a Release to Return was requested at FMLA designation; enclose a Release to Return to Work Form if the employee is currently absent, as well as a non-FMLA Leave Request Form if the employee has or will exhaust paid leave before anticipated return date. Enclose a Medical Information Request Form if the employee is currently working and the employer has knowledge of limitations impacting his/her ability to attend work. Include FSDS in communication regarding knowledge of need for non-FMLA unpaid leave.