Tuesday, November 9, 2010

Do you know? FMLA & bereavement leave (or, what to do when a supervisors calls an unauthorized leave request “cool”)

The FMLA covers a lot of family emergencies. Death, however, is not one of them. There is no situation in which the FMLA, on its face, provides for a leave of absence for bereavement. Lots of employers allow for bereavement leave for lots of situations, but it is not required by the FMLA.

That is, it is not required by the FMLA unless you promise otherwise. In Murphy v. FedEx National (8th Cir. 8/26/10), an employee sought and received FMLA leave to care for her hospitalized husband. When he died a week later, she took three days’ bereavement leave. Thereafter, she told her supervisor she needed 30 more days to “take care of things.” The supervisor responded, “OK, cool, not a problem, I’ll let HR know.” As it turns out, the extra 30 days was a problem for HR, which denied the request and terminated the employee, who had not returned to work.

The 8th Circuit was not all that sympathetic to FedEx’s claim that Murphy didn’t qualify for FMLA leave. The court focused on the supervisor’s statement, “OK, cool, not a problem, I’ll let HR know.” It concluded that one could easily interpret that statement to be an approval of the request for leave.

This is known as coverage by estoppel. While the FMLA does not cover bereavement leave, an employer’s representation, on which an employee reasonably relies to his or her detriment, will create coverage under the statute. In other words, if an employee, based on all the facts the circumstances, reasonably believes that the employer approved the FMLA leave, the employer cannot deny the leave request.

How do you avoid situations like these from cropping up in your workplace? You cannot require all leave requests be in writing, but there are certain steps you can take.

  1. Train all managers and supervisors on the minutia of your leave policies. Anyone with any authority of any kind over employees must know what leave is authorized and what is not.
  2. Require that all leave requests of any kind go through a designated central person or persons, like an HR manager.
  3. Place a statement in your handbook that only leave granted by that central person or persons is authorized, and that no one else within the company has the authority or discretion to grant a leave of absence of any kind. That way, even if a supervisor tells an employee that leave is “cool,” it will not be reasonable for her to rely on that statement.

Do you want to read more on coverage by estoppel?

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.