Tuesday, July 26, 2011

FMLA Parental Bereavement Leave: Have we met before?

Recent Family and Medical Leave news has been about a proposed amendment to the Act which would provide parental bereavement leave upon the death of a son or daughter. As with parental bonding leave that is currently provided for in the Act, bereavement leave would be taken in one block unless the employer agreed to allow for intermittent leave.

One can't help but look at the amendment and see shades of the Genetic Information Nondiscrimination Act (GINA) which added another protected class to employment discrimination. At the time of passage in 2008, many wondered if this was a solution looking for a problem. With this proposed FMLA amendment, curiosity requires the question of whether an employer would deny leave to an employee in the face of the tragic loss of a child. An employee who finds him-/herself needing more leave in the face of such a loss might have the option of doing so under either an unpaid leave of absence or by utilizing accrued/banked leave under other policies (PTO, sick, personal). Additionally, if the grief is so great that it causes depression, requires counseling, or prevents an employee from engaging in daily living activities might qualify the employee for an extended leave under the Americans With Disabilities Act, given the recent overtures by the EEOC that disabling conditions essentially mandate such action.

Of course, this discussion may be putting the cart before the horse: the FMLA Parental Bereavement Leave bill is in its infancy stages and has yet to secure a sponsor in the House of Representatives. That said, the bill is worth tracking (you can do that here) as companion legislation, or the success of this amendment, is not beyond the realm of possibility.

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