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Bereavement Leave and the FMLA Q&A

Time off after the death of a relative generally is not covered by the
FMLA. Still, you should consider granting a reasonable amount of leave
to allow the employee to grieve.
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Q: We have an employee whose son died suddenly last week. She
has been off three days, as allowed by our company policy, and was
supposed to return tomorrow. However, she called and would like more
time and wanted to know if she would qualify for FMLA leave. We do not
think the FMLA applies, so how should we respond to this employee?

A: You are correct that the employee’s leave would not normally be
covered by the Family and Medical Leave Act (FMLA). The FMLA allows
eligible employees to take leave for several family and medical reasons,
including: (1) for the birth and care of the employee’s newborn child; (2)
in connection with a child’s placement with the employee for adoption or
foster care; (3) to care for a spouse, child, or parent who has a serious
health condition; or (4) when an employee is unable to work because of
the employee’s own serious health condition. (The FMLA also allows
time off for certain qualifying exigencies related to a family member’s call
to military duty and to care for seriously ill or injured covered military
servicemembers.) (Check out Leaves of Absence model
policy, including FMLA, with 85 pages of supporting information

Leave to care for a family member does not apply to the period after the
relative’s death when an employee may want time off to grieve or take
care of the estate. So, for example, in Brown v. J.C. Penney Corp., 924
F. Supp. 1158 (S.D. Fl. 1996), the court determined that a serious health
condition applies only to people who are alive and that the employee’s
leave to care for his father’s estate was not covered by the FMLA.

However, there could be limited circumstances when the death of a
loved one causes the employee to have a serious health condition that
would qualify the employee for FMLA leave. For example, in Murphy v.
FedEx Natl. LTL, Inc., 582 F. Supp. 2d 1172 (E.D. Mo. 2008), the court
acknowledged that, although bereavement leave is not covered by the
FMLA, an employee who had been on leave caring for her seriously ill
husband could then take leave for her own personal illness related to her
grief over her husband’s death, if she can demonstrate she has a serious
health condition. Thus, if your employee indicates that she is unable to
work because of her grief, and she is under the care of a health care
provider, you can ask her for FMLA medical certification to determine if
she has a covered serious health condition.

Of course, even if the employee is not covered by the FMLA, you should
consider providing her additional time off for bereavement. Most
employers provide employees at least a minimal amount of paid time to
attend funerals. Some give additional paid or unpaid time off to
employees who must deal with estate settlement issues or who need
more time to grieve. (Download free Short-Term Absences model policy,
including time-off for bereavement
The amount of time allowed employees varies, but, traditionally, many
organizations have used a simple formula that allocates a specific
number of days depending on who died. Thus, these employers often
give three paid days off if an immediate family member dies and only one
day off for more distant relatives. While this approach may be easy to
implement, many grief counselors question whether anyone can work
productively just three days after the death of a close family member,
especially a spouse or child.

As a more flexible alternative, some organizations allow employees to
use any paid time off they have accrued, both vacation and sick, for
bereavement leave if the employee feels the time off is necessary. So, if
the employee in question has any unused paid time available, you could
consider allowing her to use it.

In addition to paid time off, some employers give unpaid leaves to allow
workers more time to deal with post-death needs. A few organizations
even give time off several weeks after a death in recognition that the
grieving process may be delayed. You are not required to provide this
extra time, but your employee certainly will appreciate it, and you should
consider the possibility that she may not be able to return to work
effectively without it.

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CD can find more information on the definition of disability under the
ADA, in Serious Diseases, Chapter 203A, note 7, and on the ADA
accommodation process, in Serious Diseases, Chapter 203A, note 13.

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