FMLA and TMLA Leave
Last Modified: 2016-12-22
VANDERBILT UNIVERSITY HUMAN RESOURCES POLICIES AND PROCEDURES
SUBJECT: FMLA and TMLA Leave
EFFECTIVE DATE: Jan. 1, 2016
Vanderbilt University will afford its employees family and medical leave guaranteed by federal and state law under the Family and Medical Leave Act (FMLA), the National Defense Authorization Act (NDAA), and the Tennessee Maternity Leave Act (TMLA). Under this policy, Vanderbilt University will grant to eligible employees, during a "rolling" 12-month period, up to 12 weeks of job protected unpaid leave, up to 26 weeks of military caregiver leave to care for a covered service member with a serious injury or illness, or in cases of childbirth or adoption up to four (4) months.
To be eligible for FMLA leave, an employee must:
- have been employed by Vanderbilt University for at least 12 months (need not be consecutive); separate periods of employment will be counted, provided that the break in service does not exceed seven (7) years.
- have worked at least 1,250 hours in the preceding 12 months from the date FMLA is to be used (these hours must be actual hours worked, not to include unpaid leave and accrued time off banks.
II. Policy Details
A. Reasons for FMLA Leave
To qualify as FMLA leave under this policy, the employee must be taking leave for one or more of the reasons listed below:
- Because of the employee's own serious health condition which makes the employee unable to perform the essential functions of the employee's job;
- Birth of the employee's child, or to care for the employee's newborn child;
- Placement of a child with the employee for adoption or foster care;
- To care for an immediate family member (employee's spouse, child 1 , or parent) with a serious health condition;
- To care for a U.S. service member or veteran with a serious injury or illness incurred or aggravated in the line of duty while on active military duty if the employee is the spouse, son, daughter, parent or next of kin of the service member or veteran. (Note: This type of FMLA leave is referred to in this policy as "military caregiver leave.");
- A qualifying exigency arising out of the fact that the employee's spouse, son, daughter or parent is a member of a regular component of the U.S. Armed Forces who is deployed on active duty to a foreign country or is a member of the National Guard or Reserves who is deployed to a foreign country on active duty pursuant to Section 101(a)(13)(B) of Title 10 of the United States Code.
B. Duration of Leave
Eligible employees may receive up to 12 workweeks of unpaid leave during any "rolling" 12-month period, measured backward from the date that any FMLA leave is to be used (see example #1). If the employee used FMLA hours during the previous year in blocks of time, or intermittently, Vanderbilt University will allow time used in each month to roll to the beginning of the month in the subsequent year (see example #2).
Examples for Determining Available Time
- If an employee used four (4) weeks of FMLA leave beginning February 1, 2010, four (4) weeks beginning June 10, 2010, and four (4) weeks beginning December 1, 2010, the employee has used their full 12-week entitlement for the rolling 12-month period and the employee would not be entitled to any additional leave until February 1, 2011. However, beginning on February 1, 2011, the employee would be entitled to four (4) weeks of leave; on June 1, 2011, the employee would be entitled to an additional four (4) weeks; etc. This example excludes FMLA taken for military caregiver leave.
- An employee with an approved intermittent FMLA leave in 2010 takes a total of 24 hours of FMLA on February 3, 15, and the 26 of 2010. On February 1, 2011, if the employee is eligible for FMLA leave and has the need for FMLA, they will have 24 FMLA hours available on February 1.
FMLA leave for the birth or placement of a child for adoption or foster care must be concluded within 12 months of the birth or placement.
When leave is to care for a service member or veteran with a serious injury or illness, an eligible employee may take up to 26 workweeks of leave during a single 12-month period to care for that service member or veteran. Leave to care for an injured or ill service member or veteran, when combined with other FMLA qualifying leave, may not exceed 26 weeks in the single 12-month period during which the 26 weeks of military caregiver leave is available. A single 12-month period for purposes of military caregiver leave begins on the first day that an employee takes military caregiver leave and ends twelve months after that date, regardless of the rolling 12-month period that Vanderbilt University uses for determining available leave for other FMLA-qualifying reasons.
Husband and Wife Work for Vanderbilt University
If husband and wife entitled to leave under this policy are both employed by Vanderbilt University, the aggregate number of workweeks of FMLA leave to which both is entitled is limited to 12 workweeks during any 12-month period, if such leave is taken:
- For the birth or placement of a child
- For a parent's serious health condition.
If husband and wife work for Vanderbilt University and each wishes to take leave to care for a covered injured or ill service member, they may only take a combined total of 26 weeks of leave.
Additional leave time may be available under (Non-FMLA) Medical and Personal Leave of Absence Policy.
C. Requests for Leave
When the need for the leave is foreseeable, the employee must provide Vanderbilt University with at least 30 days advanced notice. When an employee becomes aware of a need for FMLA leave less than 30 days in advance, the employee must provide notice of the need for the leave either the same day or the next business day. When the need for FMLA leave is not foreseeable, the employee must comply with normal call-out procedure requirements and procedures for requesting leave, absent unusual circumstances.
Leave requests that are not submitted according to policy and as soon as practicable may be delayed or denied based on individual facts and circumstances.
D. Certifications of Leave
Certification for the Employee's and Family Member's Serious Health Condition
Vanderbilt University will require certification for the employee's serious health condition or the family member's serious health condition. Human Resources will receive all medical certifications for employee's or family member's serious health condition(s). The employee must respond to the request for certification within 15 calendar days of the notice of eligibility. Failure to comply with the above mentioned requirements may result in delay or denial of leave or reinstatement from leave, in which case the employee's leave of absence would be unauthorized, subjecting the employee to discipline up to and including termination.
Certification of Qualifying Exigency for Military Caregiver Leave
Vanderbilt University will require certification of the qualifying exigency for military family leave. The documentation (i.e. military orders) should be sent to Human Resources. The employee must respond to such a request within 15 calendar days of the request. Failure to comply with the above mentioned requirements may result in delay or denial of leave or reinstatement from leave, in which case the employee's leave of absence would be unauthorized, subjecting the employee to discipline up to and including termination.
Certification for Serious Injury or Illness of Covered Service Member for Military Caregiver Leave
Vanderbilt University will require certification for the serious injury or illness of the covered service member. The certification must be submitted to Human Resources. The employee must respond to such a request within 15 calendar days of the request. Failure to comply with the above mentioned requirements may result in delay or denial of leave or reinstatement from leave, in which case the employee's leave of absence would be unauthorized, subjecting the employee to discipline up to and including termination.
E. Leave Determination
If an incomplete medical certification is received, Human Resources will provide the employee with the opportunity to either have the health care provider correct the certification or provide a written release for Human Resources to contact the health care provider directly. The employee will have seven (7) calendar days to resolve any deficiencies in the medical certification. If, after seven (7) calendar days the identified deficiencies have not been resolved, the FMLA request may be denied.
2nd and 3rd Opinions
Vanderbilt University may request recertification and/or a second opinion for the serious health condition of the employee or the employee's family member in accordance with the regulations under the FMLA. If Vanderbilt University questions the validity of the health care provider's opinion, a second opinion may be required. In such cases, Vanderbilt University will choose a health care provider to give the second opinion and will pay the cost. If the first and second opinions differ, Vanderbilt University may require a third opinion. The health care provider giving the third opinion will be jointly approved by Vanderbilt University and the employee. The third opinion will be binding on both parties. Vanderbilt University will pay the cost of the third opinion.
If, after the initial medical certification, the employee needs to renew or change the leave request, they are required to submit an additional or amended medical certification to Human Resources. Recertification will be necessary when the employee seeks an extension of his or her leave. The employee must provide a new medical certification in each subsequent leave year.
Vanderbilt University may require recertification of the ongoing need for leave every 30 days or more often depending on the circumstances of each individual situation. Failure to provide proper medical certification may result in the denial of FMLA leave, or in a delay of its approval.
Once Human Resources receives a completed medical certification the employee will be notified within five (5) business days whether or not the leave is approved or denied along with a designation of the leave as FMLA. If an employee uses accrued time off banks for a condition that progresses into a serious health condition, and the employee requests additional medical leave as provided under this policy, Vanderbilt University may designate all or some portion of the leave taken as FMLA leave, to the extent that the earlier leave meets the necessary qualifications.
F. Intermittent Leave
Eligible employees may take FMLA leave intermittently (in blocks of time), or by reducing their normal weekly or daily work schedule, when medically necessary for their own or an immediate family member's serious health condition or for the serious injury or illness of a service member. This type of FMLA leave use must be carefully reviewed and supported by medical certification. Intermittent FMLA is also available for leaves due to a qualifying exigency. Employees who require intermittent leave or reduced-schedule leave must try to schedule their leave so that it will not disrupt the department's operations.
Birth of Child/Adoption
Intermittent FMLA leave is not permitted for the birth of a child or to care for a newborn child or newly adopted child when there is no serious medical condition. An employee may use a reduced work schedule within one year following the birth or adoption of a child in agreement with the department.
Absent unusual circumstances, employees must comply with Vanderbilt University's customary call-in procedures when they miss work for reasons potentially covered by FMLA leave. Employees must also designate their absence as an FMLA covered event each time intermittent leave is used. Failure to comply with these procedures may subject the employee to discipline up to and including employment termination.
Exhaustion of Intermittent Leave
Once FMLA is exhausted or no longer needed, absences will be counted as occurrences. Should an employee exceed the estimated time away from work provided in his or her medical certification, he or she will be required to submit medical documentation or an updated medical certification to support the additional leave. If the need for more leave is protected under the FMLA, the absences will not be counted as occurrences. Absences under FMLA must be related to the serious health condition according to the medical certification. Using FMLA for reasons not related to the certification(s) is not permitted.
G. Pay Status While on Leave
An employee who is taking FMLA leave because of the employee's own serious health condition or the serious health condition of a family/service member must use all accrued time off banks prior to being eligible for unpaid leave.
If an employee is receiving short-term disability insurance benefits, they may not use accrued time off banks. Accrued time off banks will cease when the employee moves to an unpaid status. Accruals for accrued time off banks restart upon the employee's return to paid status.
A parent can use accrued time off banks for any period of a pregnancy or postpartum recovery as well as for leave to bond with a well-child where there is no serious medical condition.
An employee who is using military caregiver leave for a qualifying exigency must use all accrued time off banks prior to being eligible for unpaid leave.
H. Exempt Employee
If an exempt employee is on FMLA, the employee will be paid for workweeks that include any FMLA leave. However, whole days not worked due to FMLA will be charged against an employee's accrued time off banks or will be leave without pay. All FMLA time taken regardless of whether it is paid or unpaid will count against the employee's 12-week leave entitlement.
I. Employee Benefits While on Leave
While an employee is on leave, Vanderbilt University will continue the employee's health benefits during the leave period at the same level and under the same conditions as if the employee had continued to work, as long as the employee pays his or her portion of the health care premium.
While on paid leave, the employer will continue to make payroll deductions to collect the employee's share of the premium.
While on unpaid leave, the employee must continue to make this payment by mail to Benefit Express, Vanderbilt DB, P.O. Box 189, Arlington Heights, IL 60006. The payment must be received by the first day of every month. A 30-day grace period applies. If full payment is not postmarked within the 30-day grace period, your benefits may be terminated.
If the employee chooses not to return to work for reasons other than a continued serious health condition of the employee or the employee's family member or a circumstance beyond the employee's control, Vanderbilt University may require the employee to reimburse Vanderbilt University the amount it paid for the employee's health insurance premium during the leave period.
Employees retain their employment status during the period of leave. An absence covered by FMLA leave will not be considered a break in service for purposes of determining an employee's longevity, or any employee benefit plan.
If the employee contributes to a life insurance or disability plan, Vanderbilt University will continue making payroll deductions while the employee is on paid leave. While the employee is on unpaid leave, the employee may request continuation of such benefits and pay his or her portion of the premiums.
J. Tuition Reimbursement
Employees are eligible to continue the dependent tuition benefit during a leave of absence whether paid or unpaid. The employee's own tuition benefit or spouse tuition benefit are available only if the employee is ona paid leave of absence.
K. Job Restoration
An employee who takes leave under the FMLA will normally return to the same position or a position with equivalent status, pay, benefits and other employment terms.
Exceptions to job restoration are permitted when the original assignment ended or the original position is eliminated during the FMLA leave due to reduction in force, reorganization, or if the employee would not otherwise have been employed even if leave had not been taken.
The reinstatement guarantees do not apply to employees:
- Whose positions are so unique that the department cannot, after reasonable efforts, fill that position temporarily; or
- Who have used the leave to pursue employment opportunities or to work for another employer.
Vanderbilt University will notify the employee if their position will not be reinstated for either of the above reasons.
Unable to Return after FMLA Leave
If the employee is not medically released to return to work at the end of their FMLA leave and the employee has not been granted any additional leave, employment ends as “unable to return from leave” effective the last day of the approved leave, unless a continuation of leave has been granted as an accommodation under the Americans with Disabilities Act as amended, or for other reasons.
Failure to Return after FMLA Leave
Any employee who fails to return to work as scheduled after FMLA leave (end of certification, release to return to work, or exhaustion of leave entitlement) may be subject to termination of employment. Employees, who exceed their FMLA entitlement without extension(s) of their leave approved under other appropriate leave provisions, may be subject to dismissal from employment and applicable attendance policies.
L. Tennessee Maternity Leave Act (TMLA)
Employees who have been employed by Vanderbilt University full-time for at least 12 months are eligible for up to four (4) months of job protected leave for childbirth, pregnancy, the placement of a child for adoption or foster care, and nursing an infant. If leave is taken for adoption, the four (4) month period shall begin at the time the employee receives custody of the child.
FMLA leave runs concurrently with leave taken under TMLA. Employees who do not qualify for TMLA or FMLA may be able to take leave under Vanderbilt University (Non-FMLA) Medical and Personal Leave Policy.
To be eligible for leave under the TMLA, the employee must
- be a full-time employee;
- work at a job site in Tennessee; and
- have worked for Vanderbilt University full-time for at least twelve consecutive months.
To qualify for leave and subsequent reinstatement, an employee must provide Vanderbilt University with three (3) months' advance notice of:
- the anticipated date of departure for leave;
- the length of leave; and
- a written statement of intention to return to full-time status at the end of the leave.
The three (3) months' notice requirement is not required if an employee is prevented from giving three (3) months advance notice because of a proven medical emergency that necessitates the leave begin earlier than originally anticipated or the employee receives less than three (3) months' notice of the adoption.
TMLA Reinstatement Rights
An eligible employee complying with the notice requirements is entitled to reinstatement to his or her previous position or a similar position with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of his or her leave.
M. Notice Requirements for Returning from FMLA Leave
Employees are expected to be able to return to work by the end of their approved leave. Prior to returning from leave for a personal health condition, the employee must secure a medical release from his or her healthcare provider confirming the release to return to work to perform the regular duties or set forth any restrictions. The Request to Return from Medical Leave of Absence Form should be completed and submitted to the employee's supervisor at least two (2) days in advance of the expected date of return reflected on the Request for Leave form. After the supervisor has reviewed the form, it should be forwarded to Human Resources where it will be retained.
If the employee is released to return to work with restrictions, the department in consultation with Human Resources and the Equal Opportunity, Affirmative Action, and Disability Services (EAD) will consider whether the restriction can be met in the workplace or if a reasonable accommodation is required. Medical restrictions are those that prevent the employee from performing their regular duties at the end of the approved leave due to a continuing medical condition.
If an employee on FMLA leave for personal medical reasons is released to return to work sooner than the expected return date listed on the Leave Request, the employee must notify their supervisor within two (2) business days of receiving the release.
N. Coordination with Other Policies
Attendance and FMLA
Absences covered by FMLA or TMLA leave will not be counted as occurrences of absenteeism under Vanderbilt University's attendance policy. However, employees may be subject to discipline up to and including termination of employment 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 FMLA or TMLA leave. Misrepresentations or any act of dishonesty related to FMLA leave will also be grounds for discipline, up to and including termination of employment.
Worker's Compensation and FMLA
FMLA and Worker's Compensation run concurrently if the injury meets the definition of a serious health condition under FMLA. FMLA requests for work injuries involving Workers' Compensation may follow a different process with respect to the verification or clarification of the medical certification. Please see the Worker's Compensation Policy for more information on benefits and pay status while on leave.
O. Limited Nature of this Policy
This policy is intended to provide only those leave benefits and protections required by FMLA and TMLA. For questions regarding leave requests, contact your immediate supervisor or Human Resources. If you have questions regarding interpretation of the policy or would like hard copies of any forms, please contact Human Resources.
For additional information please see the Family Medical Leave Act found on the Department of Labor's Website (www.dol.gov).
This policy is intended as a guideline to assist in the consistent application of University policies and programs for employees. The policy does not create a contract implied or expressed, with any Vanderbilt employees, who are employees at will. Vanderbilt reserves the right to modify this policy in whole or in part, at any time, at the discretion of the University.
Approved by Barbara Carroll, Chief Human Resources Officer and Associate Vice Chancellor
Approved by Eric Kopstain, Vice Chancellor for Administration