Exploring Personal Leave Policies When Not Eligible for FMLA

How do you handle an employee who needs medical leave but doesn’t qualify for FMLA? One option is to implement a Personal Leave Policy.   

Here are some things to think about when building and administering a Personal Leave Policy.

Personal Leaves

Here are some things to consider when writing and administering your personal leave policy:

1. Is it in violation of the ADA? If your personal leave policy allows for time off for an employee’s own health condition, be sure that it doesn’t violate an employee’s rights under the ADA by having a hard limit on the amount of time allowed. We recommend adding a statement that says that the personal leave policy is only used if the employee is not eligible for time off under any other policies, including FMLA and accommodations under the ADA. If the employee is a Qualified Individual with a Disability under the ADA, then their leave should be administered under that law and not your personal leave policy. (Click here to read our article about using leave as an accommodation under the ADA).

2. How does it interact with your attendance policy? If you have a points-based attendance policy and a personal leave policy that allows for leaves in small increments (i.e. one day at a time) you may end up with employees who use the personal leave to “save” them on their final occurrence. That’s really not what a personal leave should be used for . . . and it’s going to create a lot of unnecessary administrative work for your HR team. (Click here to read our article about attendance policies and FMLA).

3. Are there performance requirements? Should employees under disciplinary action be allowed the benefit of taking a personal leave? It depends on your company’s demographic and culture but consider carving out anyone on a final warning or PIP.

4. Should you set a minimum number of days? Your personal leave policy should be intended to allow employees time off of work when they are dealing with something in their personal life that does not qualify for any other type of leave. But they most likely also have vacation and sick time, or a Paid Time Off (PTO) bank that they can use when they need time off in small increments or for a week of vacation. Your personal leave policy should have a minimum time frame of four to seven days to discourage people from using it for casual absences.

5. Should you set a maximum number of days? As long as it’s not a violation of the ADA, you can set a maximum number of days for a personal leave to help you be consistent and fair for all employees. We would recommend 30 days.

6. How often can they take a personal leave? We recommend once every rolling 12 months, but depending on your demographic and culture, you may want to consider a different amount. The important thing is to set the parameter, communicate it to employees, and then apply it consistently.

7. Who makes the decision to approve or deny? Most likely, your personal leave policy allows an employee to take time off to deal with something in their personal life after they have exhausted all other types of leave. To ensure an unbiased review and approval of personal leaves, we recommend that the HR department be the only ones to see the reason for the employee’s leave request and reach out to their manager for approval of time off only based on business need and staffing.

The key to any good personal leave policy is making sure that it does not violate any other laws and that you are applying it consistently.

Check out our other articles about what to do when an employee isn’t eligible for FMLA:

     Not Eligible for FMLA? Exploring ADA Accommodations

     Not Eligible for FMLA? Exploring Attendance Policies

Contact Leave Solutions today to find out more about how we can help you build policies and practices that ease the pain of leave administration.

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