Our employee is asking for a couple of months off for a personal leave that is not medically related (for either herself or a family member). We don’t have a policy in our employee handbook that allows for this type of leave. What are our options?
A family leave request, be it under federal or state law, is far more clear-cut and easy to apply. If the employee qualifies for the leave, makes a timely request and provides the necessary documentation, they are entitled to take the time off.
Much to Consider
A strictly “personal” leave, however, is a bit trickier, and requires the employer to consider more factors. If the company has routinely granted this type of leave for employees in the past, then rejects an employee’s request for the leave now, the company risks being subject to a claim for discrimination, especially if the employee whose request is rejected is in a different protected class than employees whose requests were granted.
An employee may request personal leave for many reasons. Examples might include taking time beyond required bereavement leave to settle a parent’s estate that could be thousands of miles away, moving kids to college, or going on a long-planned vacation.
An employer should require an employee to provide as much advance notice as possible. If unforeseeable circumstances prompt the leave request, employers should consider being fluid.
Consistent Response
Past practices are another major factor. In addition to the potential discrimination issues noted above, the company also must be aware of what they have decided in the past and be consistent with those decisions.
Given the issues described above, employers who choose to provide a personal leave of absence of this nature should create a thorough policy to address these and other issues to help ensure consistency
Another issue to consider is whether the employer is going to be able to replace the employee on leave with someone having similar experience and knowledge.
In the end, granting a leave of absence for non-medical reasons is discretionary for the employer and the question of what type of leave and how much to provide is a matter for internal consideration.
If there are any uncertainties, it is best to contact legal counsel before making a final decision on whether to grant a personal leave that isn’t medically related.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
