What do you do if your employee looks for time off for family or medical emergencies? Are you obliged to pay employees for any days taken? Are you obliged to grant the time off? How do I handle it?

Antoinette Vahey writes:

In considering this matter, it will be necessary to look at the various types of leave that are available to employees, as well as considering whether there are any other measures which can be agreed between the employer and the employee.


1. Sick leave

In circumstances where the employee is undergoing a medical emergency then he or she will be entitled to take sick leave from employment. In general, an employee has no right to be paid while on sick leave. As a result, it is at the discretion of the employer to decide its own policy on sick pay and sick leave. Many employers will have a sick leave policy in place which sets out an employee’s entitlement to sick pay, if any. It is frequently the case that an employer will seek a medical certificate on the third day of continuous absence and there are usually established absence reporting procedures which an employee will be expected to comply with while on sick leave.

If employees are not contractually entitled to paid sick leave then they may qualify for Illness Benefit from the Department of Social Protection, provided they have enough social insurance contributions.

However, an entitlement to sick leave is restricted to the employee only and does not extend to the sickness or injury of the employee’s family members. In those circumstances an employer will need to look at other types of leave which may be available.


2. Force Majeure Leave

Consideration should be given to whether the employee has any entitlement to force majeure leave. This leave is provided for under the Parental Leave Acts, 1998-2006.

Essentially, force majeure leave is paid leave which can be taken by an employee in circumstances where the employee’s immediate presence is indispensable owing to the injury or illness of a close family member.

A close family member has been specifically set out under the legislation to include the following:

* a child or adoptive child of the employee;
* the spouse of the employee or a person with whom the employee is living as husband or wife;
* a person to whom the employee is in loco parentis;
* a brother or sister of the employee;
* a parent or grandparent of the employee;
* persons in a relationship of domestic dependency, including same sex partners.

An employee who is absent on force majeure leave is entitled to payment for that leave. However, there is a limit on the number of days payable per year. An employee is entitled to three force majeure days in any consecutive twelve month period or five days in any consecutive thirty six month period. Absence for part of a day is counted as a full day of force majeure leave.

While an employee is out on force majeure leave then he or she is regarded as being in employment and retains all of their employment rights. Given the urgency of this type of leave, an employee is expected to notify the taking of leave as soon as is reasonably practicable after the return to work.

An entitlement to pay for force majeure leave was considered by the High Court in the case of Carey –v- Penn Racquet Sports [2001] 3 IR 32. This case arose on appeal from a determination of the Employment Appeals Tribunal.

Ms. Anne Carey had taken a day’s leave to look after her sick child and she applied for a force majeure leave. The Company objected to paying the employee for the day in circumstances where the child’s condition was not serious. The employee gave evidence that her child had a temperature and a developing rash so she decided to stay at home and observe her. As the rash continued to get worse she took her child to the doctor who prescribed calamine lotion and told her to keep an eye on her daughter. She said that she felt it was best to stay with her child that day and that her presence was indispensible.

The Plant Manager for the employer gave evidence to the Tribunal that he did not believe a rash could be a condition which would give rise to the immediate and indispensible presence of the employee as it was a normal childhood occurrence. He said that at the time she was applying for force majeure leave, the employee made no mention of the fact that she thought it was meningitis. In its determination, the Tribunal accepted the employee was concerned about her child’s health, however, they determined that the particulars of the case did not fall within the meaning of the Act as urgent, immediate and indispensible.

The High Court overturned the Tribunal’s decision and held that the Tribunal’s reasoning in refusing the force majeure leave because the rash had turned out not to be serious was incorrect. The Court said that this should have been looked at from the employee’s point of view at the time she made the decision not to go to work. Also, the Court held that the Plaintiff could not be assumed to have medical knowledge which she did not possess. The employee was granted her force majeure leave day and her costs.


3. Flexible working arrangements

What happens in a situation where an employee has exhausted all of his or her force majeure leave entitlements? How will the employer deal with any further requests for time off?

An employer should assess the situation on a case by case basis. In some instances, and depending on the type of industry involved, the employer and the employee may agree flexible working arrangements to cover the period of time where the family or medical emergency may arise. In this regard, it may be agreed that the employee would work up the time up at a later date or they may make other arrangements with regard to unpaid leave or reducing pay for time off. However, if there is an agreement to reduce the employee’s pay then this should be documented in writing to avoid a claim being made against the employer that they have made an unlawful deduction. Other arrangements may include allowing the employee to work from home or re-arranging shifts without any impact on pay.

It may be also be agreed to allow the employee to take an annual leave day where a family or medical emergency arises and they have exhausted their entitlement to force majeure leave. Annual leave is dealt with under the Organisation of Working Time Act, 1997. The legislation provides an entitlement to annual leave pursuant to the following criteria:

* An entitlement to four working weeks per leave year in which the employee works at least 1,365 hours.
* One third of a working week for each month in the leave year in which the employee works at least 117 hours.
* 8% of the hours an employee works in a leave year subject to a maximum of 4 working weeks.

However, for organisational reasons it may not be feasible for an employer to grant annual leave each time there is a medical or family emergency as it may not be possible to arrange cover for the employee at such short notice.


4. Carer’s leave

In circumstances where there are ongoing medical or family issues, then the employer and employee should give some consideration to whether the employee should avail of carer’s leave, which is governed by the Carer’s Leave Act, 2001.

Although this type of leave is normally taken by employees to care for close family members, there is no requirement under the legislation that the carer must be related to the recipient of the care.

The main purpose of the legislation is to provide an entitlement to an employee to avail of unpaid leave from employment to enable the employee to personally provide full time care and attention to a person who is in need of such care. Such employees must have at least 12 months continuous service with the employer,

The employee is entitled to a maximum of 104 weeks and a minimum of 13 weeks leave and leave may be taken in one continuous period or in blocks. However, it may be agreed between the employer and the employee to make arrangements for carer’s leave on terms more favourable to the employee.

Carer’s leave is unpaid, however, the employee may be entitled to avail of carer’s benefit, which is paid by the Department of Social Protection.

Employers should note that during an absence on carer’s leave, an employee is regarded as retaining their employment rights with the exception of the following:-

* There is no right to remuneration or superannuation benefits;
* The right to annual leave is restricted to the period comprising the first thirteen weeks only of the carer’s leave entitlement;
* The right to public holidays is likewise restricted to the period comprising of the first thirteen weeks only of the carer’s leave entitlement.

Absence from employment while on carer’s leave shall not be treated as part of any other leave to which the employee is entitled, for example sick leave, annual leave, adoptive leave, maternity leave, parental leave or force majeure leave.

An employer is prohibited from penalising an employee on the grounds that he or she has exercised the right to take carer’s leave. This includes their dismissal, unfair treatment or an unfavourable change in conditions of employment.


5. Career breaks

If an employee does not qualify for carer’s leave, however, there is a requirement for time off for medical or family reasons then the employer and employee may consider an employee taking a career break from employment. This could be put in place for a defined period of time with the agreement of the employer.

In circumstances where the break is agreed with the employer then continuity of service continues to accrue, however, all other employee benefits are usually suspended for the duration of the career break.

The benefit of this type of leave is that it allows the employee to have the requisite time off and it allows the employer to make provision for replacement cover, for the duration of the career break. Thus there is certainty for both sides.

However, prior to taking any carer’s leave or career break, an employee should be advised to make their own arrangements as regards payment of any bills via the company payroll, particularly as regards healthcare insurance. It is normally the case that the employee will make their own arrangements for the duration of the carer’s leave or career break.


6. Conclusion

As outlined above there are a number of measures which should be considered in circumstances where and employee seeks time off for family or medical emergencies. In all of the circumstances, the employer and employee should consider the matter carefully in order to ensure that obligations and requirements of both parties are satisfied.