FMLA & Funeral Leave

MS HR · June 2003

We allow employees 3 paid days off for funeral leave.
We have an employee on FMLA who is being paid because she is using her accruals in lieu of unpaid time off.
Question: She had a death in the immediate family and wants to use funeral leave.
Oh, wise ones out there, what say ye?

Peyton Irby MS · June 2003

i assume your FMLA policy does not address the issue and in the absence of a union contract, most do not. i assume you also do not have a past practice of allowing berevement leave while an employee is on vacation or sick leave[non-FMLA]. in the absence of a written policy or past practice, you are not required to "stack" leave time. bereavement leave is generally considered a benefit to allow active employees paid time off, not for those who are on another type of leave.
Peyton Irby
Editor, Mississippi Employment Law Letter
Watkins Ludlam Winter & Stennis, P.A.
(601) 949-4810
[email]pirby@watkinsludlam.com[/email]

gillian2 · June 2003

The first response is correct and is attorneylike, I guess because the responder is an attorney. You can, however, do whatever you would like. While many would do exactly as suggested, some might decide that since the employee is on paid leave, that bereavement leave would apply, in the interest of employee morale, sensitivity to the occasion, positive responses from other employees, etc. Setting precedents shouldn't be too big of a deal, because you probably won't get many requests for bereavement leave while someone is on a paid leave.

LindaS · June 2003

I would go ahead and allow her to use the funeral leave as it states in your policy but I would not pay her both. Although this may extend her paid leave allotment for FMLA, it would be consistent with your policy in allowing any other employee the same time off.

Don D · June 2003

Your policy probably states very simply that employees are entitled to three paid days of bereavement leave for death of immediate family members, and then goes on to define immediate. Since your policy does not (I assume) have exclusions and parenthetical disclaimers, such as "Unless the individual is already in another pay status or on leave", I do not think you should tinker with the policy with someone who is on FMLA. It is not legal to withdraw a benefit from someone on FMLA if they would enjoy the benefit had it not been for FMLA. If you want this changed moving forward, you should add to the policy; but, like Gillian2 said, how often in one HR lifetime might this come up?

Along this same line, my last place of employment had wording like this: "If an employee on approved vacation time off has a period of illness while on vacation, the leave shall not be changed from vacation to sick." I can only guess that somebody thought it was problematic that people would return from vacation and say they got sick and wanted the designation changed.

Rockie · June 2003

Wow Don! Parenthetical? I am impressed with the increase in your vocabulary skills!

shepworth · August 2003

First, I have been quite enjoying this employers forum, with all of your different input. It has helped me understand and increase my knowledge of this rather new area to our agency.

And now, for some more input please?

We have an employee who has been out on FMLA for 6 weeks to care for her ailing spouse. He passed away last week and I have been asked by her supervisor how soon she will have to be back. Her supervisor has several deadlines she is looking at in her program (we are a nonprofit agency with over 40 grants with reporting requirments). We do not have a bereavement policy. This seems to be an issue of having empathy for the employee, but I need some of your input/advise and words to know how to better handle this delicate situation. Thank you....

Leslie · August 2003

FMLA concludes when the reason that qualified the employee for FMLA is finished. So technically, with the passing of her spouse she no longer qualifies for any of the remaining 12 weeks for this reason.

As you have no policy obligations to an employee for bereavement, what have you done in the past when an immediate family member passes away? Use that as your baseline, and let common sense and compassion be your guide.

LindaS · August 2003

Leslie is correct with both the ending of the FMLA and how to handle the situation with the EE returning to work. I would call the EE in for a meeting and, using delicacy and tact, discuss her return to work. Use your best judgment regarding what is fair to the EE and what your needs, as the employer, are.

Good luck - these are tough situations.

AnneLa · August 2003

Our policy states that an employee who is on a day(s) off, on vacation, worker's comp, sick time, or LOA (paid or unpaid) is not eligible for funeral pay. This works for us.

njjel · August 2003

Yes the FMLA leave ends with the death of the husband. However in kindness and sympathy to the employee she should be allowed funeral time. We allow 5 days for immediate family and always extend it further if it is requested.

FMLA & Funeral Leave

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