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Pet-Related Leave Is Mostly Granted Ad Hoc

By Allen Smith  4/2/2014
 
Pets aren’t considered family under the Family and Medical Leave Act (FMLA), but try telling that to pet owners, whose leave requests to care for and mourn a pet typically are handled on ad hoc basis.

Pets are very important to some people. Grief over a pet’s death may cause some owners to become depressed, and that would trigger protection under the FMLA and the Americans with Disabilities Act (ADA), noted Nonnie Shivers, an attorney with Ogletree Deakins in Phoenix. “There could be a surprising amount of grief over pet loss,” she noted.

State and federal law has been slow to require that employers grant bereavement leave even for the loss of human loved ones. Oregon was the first state to mandate bereavement leave, Shivers noted, but it doesn’t include leave for the loss of pets. Employers in other jurisdictions provide bereavement leave for the loss of immediate family members and close friends on a case-by-case basis, and increasingly are providing such leave for the loss of pets.

A problem for employers is where to draw the line, Shivers said. Is bereavement leave the same for a fish as a whole tank of fish?

When Pets Are Sick

Shivers recalled how upset she was when her own pet died on a weekday when she clerked for a judge. No recognized form of leave was available, but the judge was understanding when Shivers took the pet to the crematorium on a workday.

A pet’s illness is another reason employees may request leave. If time off to care for an ill pet at home is denied, sometimes employees request permission to bring the pet to work to keep an eye on them. But that raises the issue of allergic co-workers and allergens in the workplace, which could be problematic under the ADA.

“I think most employers could refuse” such a request, said Joan Casciari, an attorney at Seyfarth Shaw in Chicago. “I could not imagine someone trying to bring a sick dog or cat into my workplace!”

Even employers that allow employees to bring in pets on a regular basis may want to draw the line at ill pets. They can do so with “common sense application of leave/time-off policies,” Casciari said. “A dying/sick pet would probably come under the coverage of personal days off. Obviously, there is an ‘employee relations’ value to being compassionate to employees without going overboard.”

Of course, service animals—which are distinctly different from pets—would have to be allowed in the workplace, as they are needed by people with disabilities as a reasonable accommodation.

An employer might be required under the ADA to provide time off for an employee to care for a service animal or adjust to a new service animal, pointed out Jay Hux, an attorney at Fisher & Phillips in Chicago.

As for pets, as distinct from service animals, employer leave policies may come down to how employers want to treat employees and how concerned they are about retention. “A lot of employees have real and significant ties to pets,” Hux said.

Managers often grant pet-related leave as a matter of good employee relations even if the company has no policy, said Scott Watson, an attorney at Quarles & Brady in Chicago. State and local legislation doesn’t protect pet leave, he added.

Policy Implications

Because time off to care for pets or mourn their loss is important to people, Watson said, employers should consider adding pet-related leave provisions to their leave policies, particularly if some pet leave is being granted anyway. “Policies should reflect things that are really important to people,” he said.

But there are some things to consider before crafting a policy. For example, depending on the culture, a pet-leave policy could be good for employee relations or it could make the employer a laughingstock, he suggested.

Also, Watson said a pet-leave policy may raise documentation questions. Could employers ask employees for a veterinarian’s note if employees want time off to care for a sick pet?

Another concern: whether a few individuals might take undue advantage of a pet-leave policy. Watson suggested including a provision that would subject policy abusers to discipline.

“Pets mean a lot to people,” so their sickness or death could be so upsetting that employees aren’t likely to be doing their best work if they have to come to work, Watson noted. He said his wife would “have a tough time working” if something happened to the family’s spaniel.

Casciari added, “There is no question that people are very connected to their pets. Two of our daughters have cats, and they are unbelievably close to them. One is actually putting off her plans to move back to Hawaii, over concerns on the logistics of taking her two cats.

“I have a close friend whose dog had to be put to sleep a year ago. She actually had a sort of ‘sitting Shiva’ with the dog the day before the poor animal went to the vet, and the whole neighborhood turned out!”

Despite the intense connection some owners have to their pets, some employees may feel silly asking for time off to care for or mourn the loss of a pet; they may just call in sick to instead.

A paid-time-off (PTO) policy would encompass time off for pet-related care, noted Maria Greco Danaher, an attorney with Ogletree Deakins in Pittsburgh. Under a PTO policy, employees use their time off as they please, whether that means taking care of pets or going to the beach.

Consistency

“My mantra is consistency for all employees,” Shivers said. If some employees get time off to care for sick pets or mourn the loss of a pet, other employees may wonder why they aren’t granted time off to care for a friend with an ill child or to attend a friend’s funeral.

“Treat people equally to avoid any plausible inference of discrimination,” Shivers remarked, referring to those who aren’t covered by the FMLA—sisters and brothers, aunts and uncles, grandchildren and grandparents (unless acting in the place of parents), and friends.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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