When is an employee entitled to force majeure leave?

Determining whether or not an employee is entitled to force majeure leave can present difficulty for many employers. In the context of the Parental Leave Acts 1998 to 2006, force majeure leave refers to a sudden injury or illness affecting a member of an employee’s immediate family, making that employee’s presence to assist that family member or domestic dependant indispensable. However, each case must be determined on its own particular set of facts and in this regard it is useful to look to the employment courts for some guidance in this area.

In a recent decision, the Labour Court rejected an employee’s claim that they were entitled to take force majeure leave three days after an injury was sustained by a family member. The Court held that in order for force majeure leave to apply, it is necessary that the reasons are urgent and the immediate presence of the employee is indispensable. In this case, the injury to the family member took place on 24 May and was treated medically on 25 May. The Court noted that force majeure leave was granted by the employer on 25 and 26 May and as such these day were not in dispute. The issue before the court was whether May 27 (the third day) should also be considered as force majeure leave. In agreeing with the employer, the Court was not satisfied that the circumstances warranted the third day constituting force majeure leave.

From this case, it is clear that the urgency of the situation and the employee’s presence being indispensable are key considerations in making a determination about whether force majeure leave should apply. In these circumstances, employees are entitled to immediate paid leave for up to three days in any 12-month period and up to five days in any 36-month period, notwithstanding their obligations otherwise under their contract of employment. Force majeure leave of less than a day is counted as a full day and the general entitlement is to a normal day’s pay for a day of force majeure leave. An employer must retain force majeure leave records for eight years. 

For further information on this area, you can consult the SFA guideline orcontact Ciara McGuone on 01 605 1668 or ciara.mcguone@sfa.ie.

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