FMLA and TMLA Leave

VANDERBILT UNIVERSITY PEOPLE EXPERIENCE POLICIES AND PROCEDURES
SUBJECT: FMLA and TMLA Leave
EFFECTIVE DATE: Jan. 31, 2023

POLICY STATEMENT

Vanderbilt University provides job protected leave to eligible employees in accordance with federal and state laws, including the federal Family and Medical Leave Act (FMLA) and the Tennessee Maternity Leave Act (TMLA).

This policy covers leaves for an employee’s own serious health condition, birth of a child and bonding time, adoption, placement of child in foster care, to care for a family member with a serious health condition, and military caregiver leave.

THIS POLICY APPLIES TO:

This policy applies to the following employment categories*: administrators, faculty, professionals, staff, union, post-doctoral scholars, and VTS, who meet the eligibility criteria below.

*For more information on the categories, please see the following link

POLICY

Vanderbilt University recognizes that employees may need to be away from work due to medical or family reasons. Some types of absences are covered by federal law, such as the Family Medical Leave Act (FMLA), and some by state law, such as the Tennessee Maternity Leave Act (TMLA). This policy describes the types of leaves available to employees for medical or family reasons, eligibility for such leaves, and the conditions under which an employee may take each type of leave. Absences covered by FMLA/TMLA are not counted as absences for disciplinary action.

In addition, this policy provides guidance on how these leaves coordinate with other laws or policies, such as state Workers’ Compensation laws and the federal Americans with Disabilities Act (ADA).

This policy provides a general description of employees’ rights under applicable federal and state law. This policy makes every effort to summarize the information accurately, but many specifics and details are not included. In all cases, the federal or state regulations will govern if there are any inconsistences between this policy and the regulations.

Family Medical Leave Act (FMLA)

Vanderbilt University will provide eligible employees up to 12 weeks of unpaid job and benefit protected leave during a rolling 12-month period. Employees may receive up to 26 weeks of military caregiver leave to care for a covered service member with a serious injury or illness.

Eligible Employee

To be eligible for FMLA leave the employee must:

have been employed by Vanderbilt University for at least 12 months. These months need not be consecutive; all employment is counted, even if the employee has had a break in service, unless that break in service lasts for seven (7) years or more; and
have worked at least 1,250 hours during the 12-month period immediately preceding the employee’s leave.

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:

Employee's own serious health condition which makes the employee either unable to work at all or unable to perform any one of 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, 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 from a family member’s military deployment to a foreign country.

Duration of Leave

Eligible employees may receive up to 12 work weeks of unpaid leave during any rolling 12-month period, measured backward from the date that any FMLA leave is to be used (see examples in procedures). If an employee’s work unit is closed for at least one week (such as the University’s Winter Break or other seasonal shutdown periods), time taken off during that period does not count against the 12-week entitlement.

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.

Intermittent Leave

Eligible employees may take FMLA leave intermittently (in full or partial-day blocks of time), or by reducing their normal weekly or daily work schedule, when medically necessary for their own serious health condition or to care for an immediate family member or service member with a serious injury or illness. Intermittent FMLA is also available for leaves due to a qualifying exigency. Leave for bonding with a child following birth, adoption, or foster care placement must be continuous; intermittent FMLA leave is not permitted. Employees who require scheduled intermittent leave or reduced-schedule leave must try to schedule their leave so that it will not disrupt the department's operations. Employees approved for intermittent leave are still required to meet job performance standards.

Spouse who Works for Vanderbilt University

If spouses entitled to leave under this policy are both employed by Vanderbilt University, each employee is entitled to take up to 12 workweeks of leave for:

Their own serious health condition
A spouse’s or child’s serious health condition

If spouses 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
A parent's serious health condition

If both spouses work for Vanderbilt University and each wish to take leave to care for a covered injured or ill service member, they may take a combined total of 26 weeks of leave.

Additional leave time may be available under the Personal Leave of Absence Policy.

Additional Leave under FMLA

If an employee’s or family member’s condition changes, resulting in the need for additional continuous or intermittent time off in excess of what was originally approved for the identified medical condition, the employee is required to submit medical documentation or an updated medical certification to the People Experience Leave Administrator to support the need for additional leave, and to continue their job-protected status.

FMLA Reinstatement Rights

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.

An employee may not be returned to the same position or a position with equivalent status, pay benefits and other employment terms when the original assignment has ended or if 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.

Tennessee Maternity Leave Act (TMLA)

Eligible employees (both parents) are provided up to four (4) months of unpaid job-protected leave for childbirth, pregnancy, placement of a child for adoption or foster care, and nursing an infant. If leave is taken for adoption, the four (4) month period begins at the time the employee is granted custody of the child.

Eligible Employee:

To be eligible for leave under the TMLA, the employee must:

be a full-time employee; and
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 due to a proven medical emergency that necessitates the leave to begin earlier than originally anticipated, or if the employee receives less than three (3) months' notice of the adoption or foster care placement.

TMLA Reinstatement Rights

An eligible employee complying with the notice requirements is entitled to reinstatement to their previous position or a similar position with the same status, pay, length of service and seniority, wherever applicable, as of the date of their leave.

End of Leave

Inability to Return after FMLA Leave for Own Medical Condition

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 a continuation of leave as an accommodation under the Americans with Disabilities Act, as amended (ADAAA), employment ends as “unable to return from leave” effective the last day of the approved leave.

Inability to Return after FMLA Leave Due to Care of a Family Member

If the employee is unable to return to work at the end of their FMLA leave for the care of a family member, employment ends as “unable to return from leave” effective the last day of the approved leave.

Failure to Return after FMLA Leave

Any employee who fails to return to work as scheduled after FMLA leave may be subject to termination of employment. Employees who exceed their FMLA entitlement without authorized extension of leave under other approved leave provisions, may be subject to applicable attendance policies and/or termination of employment.

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 insurance premium during the leave period.

Coordination of FMLA and TMLA

FMLA leave runs concurrently with leave taken under TMLA. However, since the maximum allowable time under FMLA is 12 weeks, and the maximum time under TMLA is slightly longer (4 months), the longer period is honored as applicable.

Other Leave Options

Employees who do not qualify for TMLA or FMLA may be able to request leave under Non-FMLA Medical Leave Policy and/or Personal Leave Policy. In addition, extended job protected leave may be requested as a reasonable accommodation under the Americans with Disabilities Act as Amended (ADAAA). See those policies for additional information.

Coordination with Other Policies

Attendance and FMLA/TMLA

Absences covered by FMLA or TMLA leave will not be counted as occurrences of absenteeism under Vanderbilt University's Performance and Conduct policy. Once FMLA is exhausted, or if required documentation is not received timely, absences may be counted as occurrences of absence for disciplinary action.

Workers’ Compensation and FMLA

FMLA and Workers’ Compensation run concurrently if the qualifying work injury or illness meets the definition of a serious health condition under FMLA. FMLA requests for work injuries involving Workers' Compensation typically follow a different process with respect to the medical certification. Please see the Workers’ Compensation Policy for more information on benefits and pay status while on Workers’ Compensation leave.

DEFINITIONS

Immediate Family Member
Immediate family members include an employee’s parent, spouse or child. Other family members are not covered under FMLA unless the family member either stood in loco parentis to the employee when they were a child or is a child of an employee standing in loco parentis.

Child
A child that is younger than 18, or a child 18 or older with a physical or mental disability that renders them incapable of self-care.

In Loco Parentis
Individuals who are “in loco parentis” are those that have day-to-day responsibilities to care for and financially support a child.

Next of kin
For military-related FMLA leave, the covered service member’s nearest blood relative other than spouse, parent, son, or daughter, in order of priority as defined by the FMLA.

Actual hours worked
Determining whether an employee meets the requirement for having worked 1250 hours in the 12 months preceding the request for leave is based on the definition of compensable hours of work as established under the Fair Labor Standards Act (FLSA). This includes hours that an employee is actually working. Therefore, time away from work such as PTO, Grandfathered Sick, Holiday, or non-worked time, is not counted.

Qualifying Exigency
A qualifying exigency as defined by the FMLA allows an employee to take leave to handle family affairs that arise because of a service member’s active-duty deployment to a foreign country. Qualifying exigencies may include short notice deployment, military events, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and parental care.

Rolling 12 Months
The rolling 12-month period is measured backward from the date an employee uses any FMLA leave. For example, if an employee requests to take FMLA today, the look-back is to 12 months ago (from today) to see if the employee has utilized 12 weeks of FMLA during that timeframe. If they have not exhausted the full 12 weeks, they are eligible for up to the remaining balance as of today.

CONSEQUENCES OF NON-COMPLIANCE

Failure to Follow FMLA/TMLA Policy and Procedures
Failure to comply with the procedure may result in denial of leave or reinstatement from leave, in which case the employee's leave of absence would be unauthorized, subjecting the employee to disciplinary action up to and including termination of employment.

Supervisors who fail to comply with this policy and procedures with regard to honoring leave to a qualified employee are subject to disciplinary action up to and including termination of employment.
Misrepresentations/Dishonesty
Misrepresentations or any act of dishonesty related to FMLA or TMLA leave will be grounds for disciplinary action, up to and including termination of employment.

PROCEDURES

Medical and Family (FMLA/TMLA) Leaves Procedures

These are the procedures for the Medical and Family Leaves (FMLA/TMLA) Policy. Please review the following link for the Medical and Family Leaves (FMLA/TMLA) Policy.

Requests for Leave
When the need for FMLA leave is foreseeable, the employee must provide the supervisor and the People Experience Leave Administrator with at least 30 days advanced notice. If 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 department notification requirements and procedures for requesting leave, absent compelling circumstances.

Leave requests that are not submitted timely according to policy may be delayed or denied based on individual facts and circumstances.
Certifications of Leave for FMLA
Vanderbilt University requires certification for the employee's FMLA leave request. All medical certifications must be provided by the employee or medical provider directly to the People Experience Leave Administrator, not to supervisors or work units. The employee must respond to the request for certification/documentation within 15 calendar days of the notice of eligibility. Failure to comply with the certification may result in delay or denial of leave or reinstatement from leave, in which case the employee's leave of absence would be considered unauthorized, subjecting the employee to discipline up to and including termination of employment.

Incomplete Certifications
If an incomplete medical certification is received, People Experience will provide the employee with the opportunity to either have the healthcare provider correct the certification or provide a written release for People Experience to contact the healthcare 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 a second opinion to determine a 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 healthcare provider's opinion, a second opinion may be required. In such cases, Vanderbilt University will choose a healthcare provider to provide the second opinion and will pay the cost. If the first and second opinions differ, Vanderbilt University may require a third opinion. The healthcare 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.

Recertification
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 the People Experience Leave Administrator. Recertification will be necessary when the employee seeks an extension of their leave. In cases of chronic conditions warranting ongoing intermittent leave, approval for leave is granted for no more than one year and must be recertified each 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 a delay of its approval.

Approval/Denial Notice
Once the People Experience Leave Administrator receives a completed medical certification, the employee will be notified in writing within five (5) business days whether or not the leave is approved or denied, along with a designation of the leave as FMLA as appropriate.
While on Leave
Duration of Leave Examples
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. Please see the examples below.

Example 1:
If an employee used four (4) weeks of FMLA leave beginning February 1, 2020, four (4) weeks beginning June 10, 2020, and four (4) weeks beginning December 1, 2020, 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 FMLA protected leave until February 1, 2021. However, beginning on February 1, 2021, the employee would again be eligible to take FMLA leave, and be entitled to use one additional day of FMLA leave each day for four weeks commencing February 1, 2021. The employee would also recoup additional days beginning on June 1, 2021 and again beginning on December 1, 2021.

Example 2:
An employee with an approved intermittent FMLA leave in 2020 takes a total of 24 hours of FMLA on February 3, 15 and the 26 of 2020. The employee will recoup these FMLA hours in the same fashion it was taken. On February 3, 2021, the employee will recoup 8 hours of FMLA; on February 15, 2021, the employee will recoup another 8 hours; and on February 26, 2021, the employee will recoup another 8 hours of FMLA.

Department Notification Procedures
Absent unusual circumstances, employees must comply with their department’s notification procedures when they leave early or miss work for reasons potentially covered by FMLA leave. FMLA must be tracked in the HCM System by the employee, supervisor or department HCM in accordance with department procedures. Employees must also notify their supervisor that the absence is an FMLA-covered event each time intermittent leave is used. Failure to comply with these procedures may subject the employee to disciplinary action up to and including termination of employment.

Pay Status While on Leave
FMLA leave itself is not a paid leave status. An employee who is taking FMLA leave because of the employee's own serious health condition, the serious health condition of a family/service member, or a qualifying exigency must exhaust all their accrued time off (PTO and Legacy Sick) prior to being eligible for unpaid leave, unless they apply for and are granted short-term disability benefits. While an employee is receiving short term disability (STD) benefits, they may not simultaneously utilize PTO or Legacy Sick time. Individuals on STD benefit status will be placed on “unpaid” leave (receiving the STD benefit), even if they have PTO or Legacy Sick available.

When an employee moves to an unpaid status, including while receiving short term disability payments, time off banks will no longer accrue. Accruals for PTO restarts upon the employee's return to paid status.

A parent can use PTO for any period of pregnancy or postpartum recovery (except when receiving short term disability payments), as well as for leave taken to bond with a newborn or newly-adopted child where there is no serious medical condition. A parent can use Legacy Sick time for any period of pregnancy and postpartum recovery (except when receiving short term disability payments). Legacy Sick time cannot be used for leave to bond with a newborn or newly-adopted child where there is no serious medical condition.

All FMLA time taken, regardless of whether it is paid or unpaid, will count against the employee's 12-week leave entitlement.

Employee Benefits While on Leave
While an eligible employee is on leave, Vanderbilt University will continue the employee's benefits and will continue to pay the employer portion of the premiums 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 their portion of those premiums.

The employee will continue to have payroll deductions taken for the employee portion of the premiums while they are in paid status. Once on unpaid leave status (including while on STD benefits), the employee must pay their benefit premium directly. Information will be sent to the employee’s home address on record, from Vanderbilt or its 3 ^rd -party vendor, with information on how to make these payments. 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, the employee’s benefits may be terminated.

Employees who participate in flexible spending (FSA) or health savings (HSA) accounts will have their premiums suspended while on unpaid leave. When the employee returns, the premiums will be recalculated to meet the employee’s annual goal amount.

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 years of service or qualification for any employee benefit plan.

Tuition Reimbursement
Employees are eligible to continue the dependent tuition benefit during an FMLA leave, whether on paid or unpaid status. In the case of the employee's own tuition benefit or a spouse’s tuition benefit, reimbursement will be delayed if an employee is in an unpaid status, until the employee returns to a paid status.

Notice Requirements for Returning from FMLA Leave
Employees are expected to return to work on or before the end of their approved leave. Prior to returning from leave for a personal health condition, the employee must secure a medical release from their health care provider confirming their release to return to work, to either perform the regular duties or to set forth any restrictions. The Return-to-Work release form must be completed and submitted to the employee's supervisor and the People Experience Leave Administrator at least two (2) days in advance of their expected return date.

If the employee is released to return to work with restrictions, the department -- in consultation with the People Experience Leave Administrator and the Vanderbilt Equal Employment Opportunity Office (EEOO) -- will determine whether the restrictions 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.

FAQ

Does the time I was on PTO count toward hours worked when calculating the 1250 hours worked requirement for FMLA eligibility?
No, only time that is actually worked counts toward the 1250 hours worked requirement. Therefore, time taken as PTO, legacy sick, holiday, or unpaid time does not count toward the 1250 hours.
Does my time as a temporary employee count toward the 12-month requirement when calculating the FMLA eligibility?
Yes, all active employment regardless of employee category counts toward the 12-month requirement.
Can I use FMLA to care for a sibling if I am considered the primary caretaker?
No. Qualifying family members under the FMLA only include parent, child or spouse. Siblings are not covered under the FMLA (unless the employee stood in place of the parent, and was responsible for day-to-day care and financially supported the sibling when the sibling was a child)
If I need FMLA for my own serious health condition and FMLA to care for my child who has a serious health condition, how many weeks of FMLA would I be eligible to take?
A: FMLA provides a maximum of 12 weeks of job- and benefit-protected leave during any rolling 12-month period, regardless of the number of FMLA reasons that are approved. Therefore, you would have a total of 12 weeks of FMLA available for any and all qualifying reasons.

ADDITIONAL CONTACTS

Subject	Contact/Position	Office	Phone
Questions	People Experience Leave Administrator	People Experience	(615) 343-4788

RELATED POLICIES/DOCUMENTS

Non-FMLA Medical Leave Policy

PTO Policy

Personal Leave of Absence Policy

Holiday Policy

Attendance Policy

Union Contract – for staff covered by the collective bargaining agreement

ADAAA

Workers’ Compensation

Family Medical Leave Act

Tennessee Maternity Leave Act

Reasonable Accommodation Policy

HISTORY

Issued:

Reviewed:

Comment

Amended:
Comment

Disclaimer: The policies and procedures that guide employment practices are intended to assist in consistent administration and compliance. Vanderbilt reserves the right to modify its policies and practices, in whole or in part, at any time. Revisions to existing policies and procedures, and the development of new policies and procedures, will be made from time to time at the discretion of the University. When new policies are implemented or existing policies are revised, the University will notify members of the University community as soon as practicable. However, where differences occur, the most recent policy as reviewed and approved by the University will take precedence. Policies are not intended to apply to statements or actions protected under Section 7 of the National Labor Relations Act. (NLRA) The policies and procedures do not create a contract, implied or expressed, with at-will employees at Vanderbilt.

KEYWORDS

FMLA, Leave, birth, adoption, maternity, medical, military, TMLA, family leave, child, foster care, spousal leave