Sharon, a single mother living on her own, is about to drop off her five year old child at school and continue on to the factory where she works as a production supervisor. Her child gets violently sick after breakfast and this symptom is accompanied by a high temperature. She decides that the child needs urgent medical attention so she rightly brings the child immediately to the local Doctor, who upon an initial examination, determines that the child has contracted a local bug which has been knocking about. The doctor advises that the child needs to stay at home for at least two days. The mother cannot organise childcare immediately so she must look after the child for the day. She can arrange her own mother, who usually collects the child from school, to come over and look after the child the following day.
The mother has to take the day off work but is slightly nervous of a negative reaction from her boss. She has just returned from a protracted period of sick leave but she has never experienced a family emergency yet. The question arises as to whether she can legitimately take the day off by availing of force majeure leave.
What is Force Majeure Leave?
Force majeure comes from the French and means “chance occurrence, unavoidable accident”. From an employment point of view force majeure leave was introduced by section 13 of the Parental Leave Act, 1998 with subsequent amendments. It gives the employee a brief and minimum period of paid leave in order to deal with an emergency situation where another family member has suffered an illness or injury. The situation must be so immediately pressing that the attendance of the employee is indispensable.
During an absence an employee is regarded as being in the employment of the employer and retains all employment rights and it cannot be classed as any other leave e.g. sick leave or parental leave.
Who is classed as a family member?
- 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 (essentially acting as a parent);
- a brother or sister of the employee;
- a parent or grandparent of the employee.
The 2006 Act extended the definition to include persons in a relationship of domestic dependency. The sexual orientation of the persons concerned is immaterial and includes same sex partners with whom employees have a relationship of domestic dependency.
What is the entitlement?
An employee may not take more than 3 days of force majeure leave in any 12 consecutive months, or 5 days in any 36 consecutive months. Absence for part of a day is counted as one day of force majeure leave.
Give an example of what is meant by “the attendance of the employee is indispensable”?
In the above example, the presence of the single mother at the emergency would likely to be deemed as indispensable. If the mother were able to call, for example, on a partner or another relative in the house there and then to look after the child, then it would be difficult to argue that her presence was indispensable.
Can an employee take two consecutive days together?
Technically, yes, but the stipulation for “urgent”, “immediate” and “indispensable” remains. The second day would not be allowed in the case above because the employee’s mother was available to mind the child on the second day and there was also the element of foreseeability. Two consecutive days leave would be an exceptional occurrence.
What about prior notice of an illness?
If it can be shown that the child displayed symptoms the day or night before then it would be difficult to argue force majeure as the employer could argue that the situation of urgency was foreseen and that employee had the opportunity to arrange alternative assistance.
Supposing the mother thought the child was seriously ill but was subsequently told that it was not a medical emergency – would that be classed as force majeure?
The child in the above scenario showed signs of serious illness therefore it would be irrelevant whether it might not be as serious as first thought. The right is evaluated from the standpoint of the employee.
What should an employee do if faced with a force majeure situation?
As well as dealing with the situation as best as they can, which is the priority, he/she should at the first available opportunity contact the employer and relay what had happened. There is also an obligation on the employee to fill up the designated form under the Act as soon as possible after return to work. This form includes the name and address of the ill person, the relationship of that person to the employee, the date of the leave as well as a short statement of the facts. Medical certs for the ill person are not required.
What happens if a dispute arises as regards granting the leave?
The first port of call should be the SIPTU representative who will assist with advice and representation with the employer at the level of the enterprise. If the matter is unresolved an employee, and unusually an employer, are entitled to refer a dispute to the Rights Commissioner Service. The referral must be within 6 months of the disputed entitlement. SIPTU members will be provided with representation.
The employer or employee may appeal the Rights Commissioner’s decision to the Employment Appeals Tribunal. An appeal is made by giving written notice to the Tribunal within 4 weeks of the date on which the Rights Commissioner’s decision is given.
In conclusion, Sharon would qualify for a day off under force majeure rules. If her boss disputes the issue she can call upon her SIPTU representative for advice and support.