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Do I Get Time Off From Work For A Death In My Family? Lawyer Reply!

On Behalf of | Aug 7, 2015 | Employment Discrimination, Family Medical Leave Act Claims, Religious Discrimination, Wrongful Termination |

Ohio Employment Law Lawyer Best Reply: How do I request time off of work for a death in my family? Should I be paid during bereavement leave from work? What can I do if my boss fired me for taking time off when my mother dies? Is bereavement time covered under the FMLA? Do religious discrimination laws allow me time off after the death of a relative?

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Okay, so most employers are sympathetic when you ask for time off because a family member died. Many employers do not have provisions in the employee handbook that even address bereavement time off. It is usually just a matter of telling your boss or manager who died, when he funeral is and how long you will be off. Unfortunately, there are some really rotten people in this world and some of them become horrible bosses. For example, I was scheduled to be in trial about six months ago when my family got word that my uncle’s cancer had gotten to the point that he was expected to die within the next few days. I immediately informed the court and opposing counsel, two attorneys. Amazingly, these two attorneys, who are partners at the large firm Jones Walker, opposed the continuance of the trial for any more than one day to attend the funeral. Now, the Court reasonably granted the continuance of the trial, but these attorneys shamelessly moved for sanctions against me for the continuance arising out of the death in my family. In fact, the questioned the sincerity of my religious beliefs because my spell check changed Shiva to Chiva, and they apparently reasoned that if I misspelled the Jewish time for mourning that I did not deserve to honor it. Even more astonishing to me was that one of these attorneys admitted that her step father was also being taken off life support and would die during trial, which lead to her arguing that if she only need one day off of trial to fly back home for the funeral and return that I should need no more. As I said, these attorneys are partners, which means that they are someone’s bosses.

So, what rights do employees in Ohio have to take time off after a death in the family? Directly, not much. Ohio law does not provide for any bereavement time off for employees working for private employers. The only Ohio statute that address bereavement time off is Ohio Administrative Code Chapter 123:1-34, which only covers state employees and provides:

Each full-time permanent and part-time permanent employee whose salary or wage is paid directly by warrant of the director of budget and management shall be granted three consecutive working days of bereavement leave with pay upon the death of a member of the employee’s immediate family. Bereavement leave shall not exceed twenty-four scheduled work hours. Compensation for bereavement leave shall be equal to the employee’s base rate of pay. Part-time permanent employees shall be granted bereavement leave based on the number of hours they would have normally been scheduled to work.

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Does this mean that private sector employees have no rights after the death of a family member? No. There are still possible claims. Let’s look at some of the possibilities.

The first reaction is to look to the Family Medical Leave Act (“FMLA”), which provides eligible employees up to 12 weeks off from work each year to address serious health conditions, care for a newborn, recover from illness, or care for a family member with a serious health condition. Obviously, make sure that you are eligible under the FMLA. (See Are All Employees Eligible For FMLA Leave? Best Employment Lawyer Reply!; Does My Time As A Temp Count Toward My FMLA Eligibility? I Need A Lawyer!; and Top FMLA Lawyer Reply: Am I Eligible For Medical Leave From My Job?). If you are an eligible employee, let’s turn to what qualifies. The Department of Labor (“DOL“) defined serious health condition as an:

illness, injury, impairment, or physical or mental condition that involves:

  • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
  • a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
  • any period of incapacity due to pregnancy, or for prenatal care; or
  • any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or,
  • any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

Noticeably absent from this list is death. Although I would argue that death is a pretty serious health condition, the dead don’t need the ongoing care contemplated by the FMLA. Take the FMLA case of Hoban v. WBNCC Joint Venture, for example. In that case, the employee got a call while at work informing him that his brother died; he left for the day; and then sought additional time off via text messages, which stated: “I’m calling to let you know that I’m taking care of personal needs with my brother’s body. We’re having a hard time getting his body. I’ve got to come up with $1600 to pay off some debts with(sic) him. If there’s a question or problem, please give me a call.” In dismissing the employee’s FMLA case, the United States District Court Eastern District Of Michigan Southern Division held:

There is no dispute that the employee must first provide the employer with enough information about the illness to alert the employer of the possible involvement of the FMLA. What the parties do not agree upon, however, is what constitutes “enough” information. Hoban contends that his assertion that he was a “nervous wreck” is sufficient. Defendant maintains that Hoban never gave any indication that his health was an issue. For example, in his Complaint, Plaintiff asserts, “Upon informing his employer of his brother’s demise, Plaintiff went out on an approved [bereavement] leave pursuant to the Family Medical Leave Act. Plaintiff followed the defendant’s policy and notified his supervisors regarding his leave, taking three bereavement days and an extra day for burial arrangements.” … Any mention of Plaintiff’s physical and mental states is noticeably absent in his Complaint and in his messages to his employer …

Under the relevant case law, an employee must do more than simply call in sick to work in order to invoke the FMLA. The Sixth Circuit has held that “[a]n employee gives his employer sufficient notice that he is requesting leave for an FMLA-qualifying condition when he gives the employer enough information for the employer to reasonably conclude that an event described in FMLA § 2613(a)(1) has occurred.” Hammon, 165 F.3d at 451. Therefore, although “the employee need not actually mention the FMLA by name, ‘[t]he critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition.’“ Brohm v. JH Prop., Inc., 149 F.3d 517, 523 (6th Cir. 1998) (quoting Manuel v. Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995)).

Given this standard, there is no genuine issue of material fact with respect to whether Plaintiff provided Defendant with enough information to reasonably apprise it that his request to take time off was for a serious health condition. He asked for bereavement leave. He called in to say he was in no condition to work. This comment alone fails to put Defendant on notice that Plaintiff was suffering from a “serious health condition.”

So no help from the FMLA? Not so fast. In Stubl v. T.A. Sysm., Inc., the same court addressed a different factual pattern. In this case, after the employee’s 15 year-old son committed suicid, he took a week off from work for the funeral, but continued working thereafter. A few weeks later, wrote a letter to his managers that he was taking some time off work: “I am taking this leave of absence based on my personal loss caused by the death of Keith Jr. with regards to my personal health.” The Court held:

 Stubl’s letter, fairly read, was sufficient to put T.A. on notice that his leave was covered under the Act. “The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed.” 29 C.F.R. § 825.303 (1995). See also, Price v. City of Fort Wayne, 117 F.3d 1022, 1026 (7th Cir.1997); Manuel v. Westlake Polymers Corp., 66 F.3d 758, 763 (5th Cir.1995); George v. Associated Stationers, 932 F.Supp. 1012, 1016 (N.D.Ohio 1996); Brannon v. OshKosh B’Gosh, Inc., 897 F.Supp. 1028, 1038 (M.D.Tenn.1995); Hendry v. GTE North, Inc., 896 F.Supp. 816, 828 (N.D.Ind.1995).

The obligation then shifts to the employer to obtain any additional required information through informal means. 29 C.F.R. § 825.303(b). See also, Price, 117 F.3d at 1026; Brannon, 897 F.Supp. at 1038; Hendry, 896 F.Supp. at 828. “In all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as FMLA qualifying, and to give notice of designation to the employee.” Price, 117 F.3d at 1026 (citing 29 C.F.R. § 825.208(a)).

In this case, Stubl informed T.A. of his need for leave, citing the impact of his son’s death on his personal health as the impetus for his leave. At that point, the burden shifted to T.A. to designate the leave as FMLA-qualifying, and to obtain additional information to make that determination, if necessary. T.A. claims they did not inquire further because Stubl did not specify he was taking a medical leave. However, Stubl’s letter stating that he was taking a leave for reasons related to his health put T.A. on notice of the possibility his leave was FMLA-qualifying, which is all the Act requires of the employee.

And, then there is a little grey area. In Murphy v. Fedex Nat. LTL, Inc., the United States District Court for the Eastern District of Missouri held:

Defendant argues that, when Plaintiff notified Karnes that she needed an additional 30 days to “take care of things,” this was not a request for FMLA leave, but instead for bereavement leave. Defendant is correct that “bereavement leave or absence from work following the death of one’s immediate family is not protected by the FMLA.” Barone v. Leukemia Soc’y of Am., 42 F.Supp.2d 452, 460 (D.N.J.1998); see Hoban v. WBNCC Joint Venture, No. 06-13142, 2007 WL 1101217, at *4, 2007 U.S. Dist. LEXIS 25407, at *11 (E.D.Mich. April 5, 2007) …; Lange v. Showbiz Pizza Time, 12 F.Supp.2d 1150, 1154 (D.Kan.1998) (“a `serious health condition’ within the meaning of the FMLA contemplates only medical conditions affecting the living’“) (allowing plaintiff to amend to complaint to present evidence that he was entitled to FMLA leave due to the “grief and despair” he suffered following the death of his mother)…

Plaintiff, however, claims that she was not asking for bereavement leave, but instead was seeking a continuation of her FMLA leave to care for herself after her husband’s death. The Court believes that Plaintiff’s employer’s knowledge of Plaintiff’s husband’s death, the fact that she was crying, and that she asked for additional time to “take care of things” could be sufficient to put her employer on notice that she was asking for FMLA leave. If the employer had questions regarding whether Plaintiff was attempting to continue her FMLA based upon her own personal illness, it should have followed up with Plaintiff. A fact question exists as to whether FedEx should have been on notice that Plaintiff was invoking her right to FMLA leave.

So what have we learned? Employees seeking leave after the death of a family member should always include a statement that the time off is being sought in relation to personal health or emotional issues. Although there are no cases on point, I would also presume that notice that you need time to care for the emotional distress of a child or even possibly a spouse following a death would likely trigger FMLA rights – it would be hard to argue that you need time for personal mental health when the ex-wife that you had been calling a hag for the last four years dies, but caring for your minor kids in that situation should be covered. For employers, if there is a death in an employee’s family, and you really don’t care about being an asshole in an effort to block the time off, you should confirm that the time of is to deal with non-personal related health related issues.

Now, saying in my best TV infomercial voice, that’s not all – what else do we have? Well, how about religious accommodation laws? Title VII of the Civil Rights Act of 1964 and the Ohio Unlawful Discriminatory Practice Statute, R.C. § 4112.02 require employers to make reasonable accommodations for the sincerely held religious observations of its employees and prohibits retaliation for engaging in religious practices. According to the Equal Employment Opportunity Commission (“EEOC”), “religion typically concerns ‘ultimate ideas’ about ‘life, purpose, and death.’” Typically, short periods of leave will be considered a reasonable accommodation, but there is a stunning lack of law on accommodations related to religious accommodations arising out the death of a relative. So, by inverse analogy, I present Tiano v. Dilliard Dep’t Stores, Inc.,, where the employee told her employer that she had a calling from God to travel to Yugoslavia in order to visit where others claimed to have seen visions of the Virgin Mary. The employer denied her request because the plaintiff’s requested leave of absence was during the holiday season, and then fired her when she went anyway. The United States Court of Appeals for the Ninth Circuit dismissed the employee’s Title VII religious discrimination claim because the timing of the employee’s pilgrimage was not founded on a religious belief but instead her personal preference for when she wanted to go. Death, however, cannot be scheduled around a busy around a busy holiday season, tax deadlines, or even trial dates. Many religions have beliefs that a trigger precise set of events calculated from the time of death.

While you may get time off, you are not entitled to paid time off under either the FMLA or Title VII. (Of course, you could use your paid sick or vacation time if you have it).

So, with the above considered, what is the best way to request bereavement leave from work? Tender the request in writing, always in writing (by email or fax with confirmation), stating that a relative dies and that you need time off to address your personal mental health and for religious accommodations. While you don’t have to mention the FMLA or Titled VII specifically, you could really nail down your right to bereavement leave by sending in this written request: “I wanted to let you know as soon as possible that my [mother, father, brother, uncle…] died on [date]. As a result, I need time off to observe my religious beliefs. Additionally, I am requesting time off under the Family Medical Leave act to address my depression and emotional distress.” If you turn that in and still get fired, give our employment law lawyers a call.

If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being discriminated against based on your religion or religious beliefs, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number to contact an Ohio attorney for employment law help is 866-797-6040. While you focus on your family, let our attorneys focus on your prosecuting your rights.


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