The Family and Medical Leave Act of 1993
Mason Funeral Service is a 500-call funeral business located in the Central Northwest region of the United States. The business is family owned and managed by Donald and Cindy Mason. Don and Cindy have 10 full-time employees and a large roster of part-time employees they call upon as needed. Most have been with the business for multiple years, and they have a very strong and positive team-oriented atmosphere that all the employees appear to enjoy.
One of their best full-time funeral directors, Jim, recently notified Don and Cindy that he had cancer and needed to undergo surgery and chemo treatment. The surgery and following treatments would keep him out of work for several weeks. Jim inquired about a medical leave and compensation. The business has various employee documents, including an employee handbook, but Don and Cindy are not entirely certain what their legal obligations are to Jim versus their personal desires to support him as he travels this difficult path. Therefore, they told Jim they will look into the options available to him and get back to him. Then they sought some advice.
What are the rules? The Family and Medical Leave Act of 1993 is possibly applicable in this situation. FMLA is a United States labor law that requires covered employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons. Based on the federal law, FMLA applies to public agencies, public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:
- for the birth and care of the newborn child of an employee;
- for placement with the employee of a child for adoption or foster care;
- to care for an immediate family member (spouse, child or parent) with a serious health condition; or
- to take medical leave when the employee is unable to work because of a serious health condition.
Most states do not have their own FMLA regulations and simply defer to the federal rule. However, there are states that have created their own FMLA laws, such as California, Connecticut, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, Wisconsin and the District of Columbia.
In this situation, there is something else beyond FMLA that may impact what Don and Cindy are obligated to provide Jim – the Mason Funeral Service employee handbook. While employee handbooks are not necessarily employment agreements, employers may be held accountable to the policies within the employee handbook just as employees can be held accountable.
In this case, a review of the employee handbook indicates that FMLA is not referenced. However, there are two policies within the document that may be applicable: 1) paid time off and 2) leave of absence.
The paid time off policy states: “Regular employees are eligible for paid time off, which is a single bank of time that an employee can draw upon to use for any purpose they wish. The amount of time available in this bank depends on how long you have worked for us.”
The leave of absence policy states: “Leave of absence is time off in a nonpay status. An employee must submit a request for leave of absence in writing to the manager. The employee is expected to request leave of absence with as much advanced notice as possible. Leaves of absence will not be granted for periods less than two weeks in duration. Paid time off should be used for such absences. The reason for leave should fall into one of the following categories:
- Medical (including pregnancy-related).
The company will make a reasonable effort, consistent with good business practices and company needs, to reinstate an employee to the same position he or she previously occupied, or to a similar position, following a leave of absence.”
Did the employer make any mistakes?
It was wise for Don and Cindy to inform Jim that they needed to investigate the situation before confirming how his leave would work and how he might be compensated. Rather than provide misinformation to the employee, it is better to indicate that research or clarification needs to be gathered before providing an appropriate response. This should help avoid a larger problem in the long run.
Resolution of the issue: FMLA does not apply to this situation as the Mason Funeral Service business does not have 50 or more employees, and the state they reside in refers to the federal rule. Thus, the only applicable rules are the policies established by the company employee handbook. Ultimately Don and Cindy will need to sit down privately with Jim and discuss his options. Prior to meeting with Jim, Don and Cindy need to reach several decisions.
- Are they going to grant his leave request?
- Will Jim be allowed to use any of his accrued and unused PTO during his leave?
- How are they going to support him as he goes through this challenging time in his life?
All these decisions are important, but the last is critical. If they elect to provide some type of financial support that is outside of the requirements of FMLA and their own policies, they may be establishing a precedent that will obligate them in the future in other circumstances to different employees. They should give careful consideration to this aspect of the situation. Rather than providing financial support, perhaps there is some opportunity for Jim to do some work from home by the hour or by task as he is feeling capable of doing so.
When meeting with Jim, they should have and present the following:
- The Mason Funeral Service employee handbook.
- A memo that documents how much PTO Jim has remaining in his bank (if he will be allowed to use this time during his leave).
- A blank leave of absence form.
- A PTO request form.
During their conversation with Jim, they should walk through the relevant policies in the employee handbook (PTO and leave of absence) and make sure that he clearly understands them. Don and Cindy can try to get a better understanding of how much time Jim will need for his recovery as well as deciding whether he will need intermittent leave. They should walk Jim through how to complete the leave of absence request form and when he should submit it to them. Upon reviewing Jim’s accrued unused PTO, he can then elect how much of his PTO he would like to use toward his leave of absence.
Lastly, if Don and Cindy have determined any additional support they would like to offer, it can be discussed at this time. During this conversation they should stress confidentiality. Should Jim elect to tell others of his illness? That is his choice, but such information should not come from Don and Cindy.
Preventive Measures: An employee handbook should clearly state that it is not intended to create an employment agreement. Further, if the business employs fewer than 50 people and is not in a state that establishes FMLA rules, then do not reference FMLA leave in the employee handbook. Have a clearly written vacation/sick/PTO policy as well as a leave policy so situations like this one can be addressed.
Don and Cindy had everything they needed to handle this situation. They just needed some assurance that they were doing so correctly. Remember, it is important to fairly and consistently apply existing policies to all employees. If a situation comes up and you are not certain how to handle it or how your existing policies should be applied, seek the assistance of a professional. It is better to be safe than sorry.