"contract language that includes the word "may"

paranor98

When a contract contains language such as "a leave of absence may be granted for up to one year," how should the employer make a decision on the matter w/o it appearing arbitrary and capricious?

Any help will be appreciated.

Thanks

Michael D. Blair

HRCalico

[font size="1" color="#FF0000"]LAST EDITED ON 02-13-06 AT 10:28PM (CST)[/font][br][br]I created a VERY simple form to request an extension of a leave of absence. When an employee is near exhausting their family medical leave, I send them the form and ask them to return it by x date, which is before the FML ends. It lists their name/dept/etc. and then asks for a GENERAL reason for needing leave. I don't give them much space because I don't need a lot of info. Back Injury. Care for spouse after having surgery. Whatever. Good enough. I then ask for an approximate length of extension/return to work date - which they must confer with their doctor to get. If they are not able to return by the time that date comes up, I send another form. The bottom of the form has space where I indicate if they are FML eligible (if they weren't, we'd allow them to use the form to request a LOA to begin with), if the FML is exhausted, and then there is room for the approval signatures - mine, the president, supervisor, etc.

Different circumstances will bring about different responses - there's no way around that. I had an employee not return the form, so I terminated him after he exhausted his FML, with the eligibility to reapply, of course. If it were a position not easily covered or temped out or whatever, I probably would document the reasons why and not grant the leave.

Thankfully I don't have to deal with this much, though, so if you have it come up more frequently, you may need to have tighter rules.

PS - welcome to the forum!

Down_the_Middle

paranor98:
The use of the term "may" affords you maximum flexibility in deciding whether or not to offer the leave, how long, and under what terms. Things like business volumes, flexibility of staff to fill-in, reason for leave, etc.... are all important in your decision to grant the leave and none of them can easily be deemed arbitrary or capricious. Someone likely worked hard to insert the word "may" into the contract. I wouldn't lose sleep over an allegation of arbitrary/capricious unless you choose to deny a leave due to the weather or some other silly reason.

WT

The reason you have employees is that you need them. Thus, time off without pay should be kept to a minimum. You need to keep the job open while somebody is out on leave yet still get the work done. The only way you are going to get into trouble is if you give leaves to some people using one level of scrutiny and then use a whole different standard for others. Be consistent.