1 LEAVE OF ABSENCE WITH & WITHOUT PAY APPROVAL/DENIAL GUIDELINES The following table is designed to assist supervisors/managers in making informed decisions when determining whether or not leave requests should be approved or denied. This table is not intended = s Administrative Rule (W. V to address every situation but should serve as a useful guide. It is imperative that all supervisors/managers with leave approval authority read the Division of Personnel A . policy, and guides regarding paid leave, unpaid leave, attendance management, the ODE R. ' 143- 1-1, et seq ., Family and Medical Leave Act / Parental Leave Act policy , Delayed Payroll Assignment C any law, rule, or Family and Medical Leave Act (FMLA), West Virginia Parental Leave Act (PLA), and the Fair Labor Standards Act (FLSA). This general information should not be construed to supersede policy. In the case of any inconsistencies, statutory and regulatory provisions shall prevail. An internal leave usage procedure should be developed by the agen cy and shared with all employees. Annual and sick leave, when possible, should be scheduled in advance and in compliance with in- ternal policy and the Administrative Rule . However, there are situations in which leave cannot reasonably be requested in advan ce, e.g., inclement weather, transportation problems, unexpected illness, and a death in the immediate family. When granting leave requests is discretionary, the appointing authority should generally grant the leave at those times that will not materially affect the agency's efficient operation. More importantly, requests for leave should be handled in a consistent manner throughout the agency. Ann ual and sick leave shall not be granted in advance of the employee = s a c- crual of the leave.
2 SITUATION DECISION FACTORS TO CONSIDER Did the employee follow proper agency procedure when 1. ck leave Employee requests si If procedure was not followed, the leave should still be approved but the employee should be reminded of re- in advance or calls in procedure and informed that future failure to follow procedure will result in denial of paid leave resulting in requesting the leave? unpaid unauthorized leave and/or disciplinary action for continued occurrences. Reasona ble travel time for questing sick leave. healthcare appointments may also be charged to sick leave not to exceed a total of three (3) hours travel time per occurrence sufficient sick leave accrued, annual leave shall be substituted if requested. Sick leave If the employee ha s in Does the employee have sufficient accrued leave to cover accrual may be prorated for employees granted a Medical Leave of Absence Without Pay (MLOA) or satisfy- the absence? ing the conditions for approval of a MLOA. Leave of absence with out pay shall be granted in accordance with the Administrative Rule . An employee must also be informed in writing regarding potential exhaustion of n- leave and the proper procedure for requesting a MLOA and he or she should also be provided written co ion of each instance of removal from the payroll. If applicable, the employee must be informed of a s- firmat signment or possible future assignment to delayed payroll status in accordance with the Division of Perso n- nel Delayed Payroll Assignment Policy. the absence exceed three (3) consecutive days or v- Will If no physician = s statement is provided, the employee = s pay must be docked for unauthorized leave. Howe cian = s statement which is er, the supervisor is obligated to inform the employee of the necessity of the physi ? scheduled shifts to be submitted within two (2) days upon return to work . If the statement from the attending physician specifies a period of incapacity of less than the entire absence, only the period of incapacity shall be charged and the remaining absence shall be charged to annual leave, if annual leave is available to the to sick leave employee and is not otherwise restricted. e- FMLA and/or PLA leave appropriate forms to request paid or unpaid Provide the employee . If the leave r Does the leave qualify as FMLA and/or PLA leave? quested falls under the guise of FMLA and/or PLA (See the FMLA /PLA Policy and Guide ), the employer shall approve the leave and provide the employee notice of designation of the leave as FMLA or PLA . Exhaustion of pa id leave shall be accomplished in accordance with FMLA and PLA guidelines . If the employee is eligible for leave under both laws, he or she is entitled to the most generous benefits and rights provided under the law. The decision a s to which is more generous must be made by the employee . different parts of each m- If so, leave may be denied if the employee did not comply with the directives outlined in the plan of i Is the employee on leave restriction? provement setting forth the leave restrictions. The employee should be informed in writing of each instance of removal from the payroll. If the employee is not currently on leave restriction and/or delayed payroll but it appears as though he or she is misusing sick leave, the employee should be evaluated for placement on leave restriction and/or delayed payroll (See Attendance Management guide and Delayed Payroll Assig n- ment policy).
3 SITUATION FACTORS TO CONSIDER DECISION 2. Employee requests sick leave Consider all factors outlined in Situation 1. See #1. for an immediate family Has the employee . Annual leave Administrative Rule If so, discretionary annual leave may be requested in accordance with the exhausted the forty (40) hours of family member as defined in the must be granted and exhausted if the leave is FMLA or PLA qualifying. sick leave entitlement? . Administrative Rule yee requests leave for Emplo 3. Consider all relevant factors outlined in Situation 1. See #1. a death in the immediate Will the absence exceed three (3) consecutive days or An employee is entitled to three (3) days of sick leave for a death of a member of the immediate family, as family. -1-1, . A . C ODE R. ' 143 If sick leave is requested to commence immediately preceding et seq defined in W. V ? scheduled shifts and/or following the leave granted for death in the immediate family, a physician's statement will no t be required unless the employee is on leave restriction or the additional sick leave exceeds three (3) consec u- tive scheduled workdays, provided that the employee presents verification of a qualifying death. In the a b- sence of verification of a qualifying death, the employee shall be required to present a physician's statement Approval of annual leave beyond this period is discretionary. for the entire period of absence. Employee requests MLOA for not to exceed six (6) months within a twelve 4. a MLOA employee is eligible for An injured or ill permanent Is the employee eligible for MLOA? an illness or injury. . C ODE R. ' 143 -1-14.8. month period provided he or she meets the requirements set forth in W. V A Did the employee follow procedure and docume If procedure was not followed, the leave should still be approved but the employee should be reminded of ntation procedure and documentation requirements and informed that future failure to follow procedure will result requirements when requesting the leave of absence? in denial of MLOA and possible charge to unau thorized leave or disciplinary action. Employers need to pro- vide sufficient assistance to the employee to help him or her comply with procedures. . Ho w- The employee is required to exhaust all sick and annual leave prior to the commencement of a MLOA Has the employee exhausted all sick and annual leave? ever, if the request is a result of a compensable injury received in the course of and resulting from covered employment with the State or its political subdivisions, the employee is not required to exhaust all sick and annual leave but may elect to receive Temporary Total Disability (TTD) benefits rather than paid sick leave . In addition, if the leave is designated as FMLA leave, exhaustion of paid leave shall be accomplished in compli- applicable requirements. ance with the = s statement indicate that the emplo y- s- If so, he or she is ineligible for a MLOA, unable to resume employment, and must resign, retire, or be di Does the physician m- ee has a disability of such nature as to render the e missed. duties? ployee permanently unable to perform h is or h er
4 FACTORS TO CONSIDER DECISION SITUATION Employee requests leave for 5. Is the employee eligible for FMLA and/or PLA? FMLA/PLA Policy and Guide. See the FMLA or PLA purposes. Did the employee follow proper procedure and docume n- If procedure was not followed, the leave should still be approved but the employee should be reminded of i- w procedure will result in denial of paid leave and poss procedure and informed that future failure to follo tation requirements when requesting the leave? ble charge to unauthorized leave or appropriate disciplinary action . However, leave cannot be approved if required documentation is not provided. Has the employee exhausted sick and annual leave as r e- = If the leave is being requested for a member of the employee s immediate family, he or she can only exhaust the 40 hours of sick leave to which they are entitled and annual leave . Leave of absence without pay may be quired by FMLA or PLA? granted in accordance with W. V A ODE R. ' 143- 1-14.8, and in compliance with FMLA and PLA requirements . C ). (See the FMLA/PLA Policy and Guide Employees are entitled to use leave intermittently under the FMLA in most situations . (See the FMLA/PLA Will the employee be taking leave intermittently (taken in Policy and Guide ). small increments rather than in consecutive days)? 6. Employee cannot return to eligible for a personal leave of absence without pay in addition to the six (6) months of The employee is Has personal leave of absence without pay been consi d- m- medical leave of absence without pay. However, this leave is discretionary and should be afforded to e work upon exhaustion of ered? ployees in a consistent manner throughout the agency and in acc ordance with W. V . ' A . C ODE R. -1-14.8 143 MLOA. Personal leave of absence without pay should be seriously considered if a short extension of leave would permit the employee to recover and return to work. . C An employee may be permitted to return to work at less than full duty in compliance with W. V A ODE R. ' Can the employee return at less than full duty? . If return at less than full duty is denied, the Director of the West Virginia Division of Personnel -1-14.4(h) 143 must approve denial. Does the physician = for a If the employee submits a physician = s statement certifying permanent disability, he or she is ineligible s statement indicate the employee has im unless er pe r- a disability of such a nature as to render h MLOA, unable to resume employment, and the employee -employer relationship must be severed or h manently unable to perform h is or h er duties? personal leave of absence is approved or an alternative position is available . x- = s statement and request for an extension of the MLOA. = 7. compensation TTD Employee has been on e Is the employee receiving workers The employee should continue to submit a physician If the leave is a result of a serious health condition as defined in the FMLA, the leave shall be designated as tended leave of absence benefits? FMLA . The employee may be dismissed only upon failure to return to work after exhaustion of leave enti- without pay due to a co m- tlement and at such time he or she is no longer receiving or eligible to receive TTD benefits or for a legal in- pensable work -related illness fraction relating to h is or h er employment. In rare circumstances, an employee may be dismissed for pe r- or injury. formance issues that were discovered after the employee began h is or h er MLOA.
5 SI DECISION TUATION FACTORS TO CONSIDER 8. b- leave of a Employee calls in requesting See #1 . If the employee does not have sufficient accrued and unused annual leave, a p ersonal Consider all factors outlined in Situation 1. sence without pay may be approved in accordance with W. V annual leave. ODE R. ' 143 -1-14.8. A . C What are the circumstances necessitating the request (i If there is a legitimate reason why leave could not be requested in advance or if calling in to request annual n- ternal policy should provide guidance regarding accept leave is not contrary to internal policy, annual leave may be approved. However, if a pattern of calling in e x- a- ists, the employee = s pattern of leave usage should be reviewed. If a problem is found t o exist, the employee ble circumstances)? should be advised that future incidents may result in h is or h er pay being docked for unauthorized leave and appropriate disciplinary action may be taken. In limited situations, based on work activity and claimed need employee may be required to report to work. for absence the 9. Employee requests annual Did the employee follow proper agency procedure when If procedure was not followed, the leave should still be approved but the employee should be reminded of i- procedure and informed that future failure to follow procedure will result in denial of paid leave and poss requesting the leave? leave for sick leave purposes. ble charge to unauthorized leave or disciplinary action. If not, the approval of annual leave is discretionary. Has the employee exhausted all sick leave? Will the absence exceed three (3) consecutive days or i- When requesting annual leave for sick leave purposes, the employee may be required to submit a phys s statement in accordance with W. V = cian = s statement is provided, -1-14.4(g). If no physician 143 ' R. ODE A . C scheduled shifts ? the employee must be charged unauthorized leave and h is or h er pay must be docked accordingly. However, s statement which is to = sity of the physician the supervisor is obligated to inform the employee of the neces be submitted within two (2) days of the employee = s return to work. If the employee’s physician/practitioner has placed restrictions or limitations on the employee’s work activities, the employee must furnish th e pr e- scribed physician’s statement immediately upon return to work.
6 SITUATION DECISION FACTORS TO CONSIDER The employee may be permitted to utilize annual leave for the absence . However, the minimum charge is 15 Employee is tardy. Does the employee have sufficient accrued annual leave 10. minutes so the employee must not begin work until 15 minutes after the start of h is or h er scheduled start to cover the absence? an be taken off from the payroll time. If the employee has insufficient accrued and unused leave, he or she c for the period of tardiness (typically processed as personal leave of absence without pay ). If no acceptable = s pay can be docked for unauthorized leave. In certain reason is provided for the tardiness, the employee ns, an employee may be required to vacate the office area for the remainder of time between re- situatio porting to work late and the completion of a full 15 minute leave charge interval. The employee would be o begin working. expected to promptly report as directed and to be ready t Are work schedules such that an adjusted schedule may If the employee has no accrued annual leave or desires not to use accrued leave and is not on leave re- striction, he or she may be allowed to schedule adjust and make up the time by staying late or coming in be allowed? early within the same workweek. er pay should be docked Except in mitigating circumstances, if the employee is on leave restriction h is or h Is the employee on leave restriction? for unauthorized leave and appropriate disciplinary action may be taken. p- If the reason(s) provided for the tardiness is acceptable, annual leave or schedule adjustment may be a What are the circumstances surrounding the tardiness is or h er leave usage should be r e- proved. However, if tardiness has become a pattern for the employee, h (internal policy should provide guidance regarding ac- viewed. The employee should be advised that future incidents may result in h is or h er pay being docked for ceptable circumstances)? unauthorized leave and ap propriate disciplinary action may be taken. . Situations such as these us u- Is the situation addressed in Division of Personnel Policy Employee cannot report to Base decisions on Division of Personnel Policy DOP -P4 and internal procedure 11. work due to inclement ally affect multiple employees and all should be treated consistently and fairly throughout the agency. DOP -P4, Emergency Situations/Inclement Weather ? weather. Employee requests leave of 12. It is the employee = s decision as to whether or not he or she wants to exhaust paid annual leave prior to Does the employee wish to exhaust annual leave? commencement of personal leave of absence without pay . However, the agency may require exhaustion of absence for personal reasons. annual leave as a c ondition for approval of personal leave without pay. Personal leave of absence without pay is approved or denied at the discretion of the appointing authority. How have other similar requests been handled? When evaluating requests for personal leave of absence without pay , consistency based upon business need is the predominant factor to consider.
7 SITUATION DECISION FACTORS TO CONSIDER 13. Is the employee a certified disaster service volunteer of If not, the agency may grant annual leave at its discretion. If so, he or she may be granted leave with pay for Employee requests time off not more than fifteen (15) work days in a calendar year to participate in specialized disaster relief serv ice the American Red Cross? to assist with disaster relief. y- upon the request of the American Red Cross . Leave shall be granted only upon the approval of the emplo s immediate supervisor . Such leave shall be granted without loss of pay, annual leave, sick leave, earned ee = = s regular rate of pay for those ompensatory time and the employee overtime compensation, seniority, or c regular work hours during which the employee is absent. When such leave is approved, the supervisor shall make a report to the governor which includes the name of the employee and the cost o f salary and benefits of that employee during the period of Red Cross Disaster Leave (See W. V . C ODE ' 15- A 5-15a). Leave beyond fifteen (15) work days may be approved as annual leave at the discretion of the appointing authority. or disc i- y not be dismissed 14. Employee requests Is the employee a member of a volunteer fire department time off If not, the agency may grant annual leave at its discretion. If so, the employee ma plined when, in the line of emergency duty, he or she responds to an emergency call prior to the time he or to respond to an emergency or an emergency medical service attendant? er employment she is due to report for work and which emergency results in a loss of time from h is or h . This medical services/fire fighter is not a paid leave entitlement - . Annual only the right to respond and be tardy to work without calling in call. leave or pay reduction must cover the absence. The employee losing time must supply h is or h er supervisor with a written statem ent from the chief of the volunteer fire department, director, supervisor, or other a p- propriate person in charge of the emergency medical service entity Employers . For more information see, Prohibited from Discharging Employees for Time Lost as Volunteer Firemen or Emergency Medical Service Attendant , W. V 21- A . C 5-17 and Employers Prohibited from Discharging Employees for Time Lost as ODE ' Emergency Medical Service Personnel , W. V ODE ' 21 -5-18). A . C mployee requests court, ' 15. Is the employee or a member of h is or h er immediate R. ODE . C A ry, and Hearing Leave as provided in W. V E If so, the employee is not entitled to Court, Ju t, family a plaintiff, defendan 143 -1-14.10. However, annual leave should generally be approved in this situation if appropriate written or other interested party? jury, or hearing leave. confirmation of the necessity for the absence is provided by the employee. r- Does he or she have a personal, financial, or vested inte --------------- est in the outcome of the proceeding? If not , the employee is entitled to court, jury, or hearing leave without charge to annual leave for time spent in compliance to a subpoena to serve on a jury or appear as a witness that falls within the employee’s scheduled workday . However, the employee is required to submit a subpoena and/or written confirmation of the time spent at court for the hearing or jury duty. Compensation such as appearance fees received by endered to the the employee for participation in court, jury, or hearing functions may be required to be surr agency based upon internal policy established by the agency. When an employee is released from service prior to the end of the workday, and there is more than one hour remaining in the employee’s scheduled workday after allowing for reasonable return travel time, the employee shall return to work or request approval for annual leave
8 SITUATION FACTORS TO CONSIDER DECISION 16. r- For assistance in dete Employee requests military Is the leave being requested for routine training/drills or Employees ordered to military duty by proper authority must be granted time off. ordered or authorized by proper autho for active duty as mining eligibility for paid or unpaid leave, refer to W. V r- 1F 15- -1 A . C ODE R. ' 143- 1-14.9,and W. V A . C ODE ' leave. for leave entitlement information. Additional information can be obtained from the Division of Personnel = s ity? - www.personnel.wv.gov/Pages/default.aspx web site at . Employee requests ed uca- -1-14.11 and 143 17. ' R. Program eligibility is limited to full -time permanent employees. Refer to W. V A . C ODE Is the employee eligible? tional leave. Division of Personnel Policy DOP- P16, Educational Expense Reimbursement/Leave Program . Subsidized leave shall be considered as continuous employment, except that employees while on educatio n- Will the leave be subsidized or non -subsidized? al leave shall not accrue sick leave or annual leave, nor are the employees eligible for salary advancements. Revised : December 2013
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