Force Majeure Leave

Friday, April 25, 2014

The Parental Leave Acts, 1998 and 2006, give employees in Ireland a limited right to leave from work in times of family crisis. This is known as “force majeure leave” and arises where for urgent family reasons the immediate presence at the place where the (injured or ill) person is, whether at his/her home, of the employee is indispensable as a result of an injury to, or illness involving a close family member.

Force majeure leave may be taken in respect of

  • 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.

Employees are entitled to be paid while they are on force majeure leave.

Force majeure leave does not, however, confer an entitlement on employees to leave following the death of a close family member. Therefore, an employee’s entitlement to compassionate leave will depend on the terms of the employment contract, custom and practice within their organisation and/or the employer’s discretion.

By its very nature notice cannot be given of force majeure leave but there is an obligation on an employee who takes this leave to, as soon as practicable thereafter, inform his/her employer by notice in the prescribed form given that he/she is taking such leave and that notice shall specify the dates on which the leave was taken and a statement of the facts entitling the employee to take the force majeure leave.

The maximum amount of leave is three days in any twelve month period or five days in a thirty six month period.

Key Points

An employee is entitled to leave with pay from his or her employment for urgent family reasons, owing to the injury or illness of any of the persons listed below.

Entitlement to force majeure leave is limited to circumstances where the immediate presence of the employee, at the place where the ill or injured person is situated, is indispensable.

The limited right to leave from work in time of family crisis arises in the following circumstances:-

o Where for urgent family reasons, the immediate presence of the employee is indispensable;
o As a result of an injury to, or illness, involving a close family member, the employee’s presence with that family member is required.

During an absence on force majeure leave an employee is regarded as being in the employment of the employer, and retains all of his or her employment rights.

Force majeure leave is paid leave. It cannot be treated as part of any other leave (e.g. sick leave, adoptive leave, maternity leave, annual leave or parental leave) to which the employee is entitled.

Force majeure leave does not give any entitlement to leave following the death of a close family member (this is dealt with under compassionate leave).

Notification of Force Majeure Leave

As soon as reasonably practicable after his or her return to work after an absence on force majeure leave, an employee must confirm to his or her employer that he or she has taken the leave and complete a Force Majeure Leave form specifying the detailed information.

Maximum Entitlement

An employee may not be absent on force majeure leave for more than 3 days 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.

What legislation does it come under?

Force Majeure leave is an entitlement under the Parental Leave Acts 1998 and 2006.

Abuse of Force majeure leave

Employers should set out very clearly in the contract of employment or employee handbook that if it is suspected that force majeure leave is being abused, disciplinary action up to and including dismissal will be considered in accordance with the Company’s disciplinary procedure.

Recent Case Law

 

Recent case law in the area shows the approach taken by the Employment Appeals Tribunal and Courts in determining when a situation is considered urgent enough to require the immediate and indispensable presence of an employee.