Q. One of my employees has been out onfor seven weeks taking care of his sick father in another state. The leave was approved for a full 12 weeks. I received a voice mail from him saying that his father died. He also said that he had to clear up a lot of things with his father's estate, but that he would be back by the end of his scheduled leave. Can he do that or can I tell him he needs to come back sooner? —V.S.
A. It does sound as if the employee feels like he is entitled to take the full 12 weeks of leave. However, theonly requires that you provide leave for time spent caring for a parent or child because of the person's serious health condition, not time spent in bereavement or wrapping up the affairs of someone who dies. The courts have been consistent in upholding that distinction.
If you have a bereavement-leave policy, the additional time could be counted against that leave, but it's unlikely that would be an additional five weeks. So, you should inform the employee that the time following his father's death isn't covered by the FMLA and either require that he return earlier or agree to some other form of leave.
This is one of the many times in which employers have the difficult task of balancing their legal right to act (obviously sympathetic to the employee's circumstances) and the need to be consistent in how such situations are handled for all employees, not just this particular one.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- No need to offer indefinite leave as disability accommodation
- Employee may be using FMLA leave for years to come--how often can we request an updated certification?
- Progressive discipline and pregnancy: Can the process continue?
- How brief a time increment must we use when granting FMLA intermittent leave?