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HR MATTERS E-TIPS
THIS WEEK’S E-TIP: Bereavement Leave and the FMLA Q&A
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THIS WEEK’S E-TIP: 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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THIS WEEK’S E-TIP: Bereavement Leave and the FMLA Q&A
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. |
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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.
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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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