We are contemplating the provision of special leave for bereavement and critical illness - if there could be any legal implications?

Dear professionals,

I would appreciate your insights on the following matter:

We are contemplating the provision of special leave for bereavement and critical illness. The intention is to address these specific situations without formally including them in our general leave policy due to concerns about potential misuse by employees. My question is whether it is legally necessary to explicitly mention this special leave provision in our policy, and if there could be any legal implications if it is not explicitly stated. Your perspectives on this matter would be valuable.

Thank you for your input.

Special leaves for meeting some special occasions are not a legal mandate for any employer. So long as you are providing 12 days of Casual leave, 12 days of sick leave, 12 days of Earned leave, and special casual leave for sterilization at the rate of six days for male employees and fourteen days for female employees under the Kerala Shops and Commercial Establishments Act, you are legally compliant. In addition to these, women employees are entitled to maternity leaves. If you wish to grant leaves for specific occasions such as the death of a family member or the illness of a family member (self-illness would be covered under sick leave), it is good. However, incorporating such provisions in HR policies and Leave policies could lead to potential issues in the future.

With over three decades of experience in the field, I have observed that privileges granted can often transform into rights over time. Therefore, if special leaves are allowed, there should be specific conditions attached, and it should remain a managerial prerogative rather than an employee's right. The employee handbook/leave policy should clearly state:

"In the absence of any leave credits, the management may provide a certain number of leaves to ensure the employee's presence at home in the event of a family member's death or to care for a hospitalized family member."

It is essential to define a family member to prevent potential misuse of this provision.

Thank you.

You are right. We are currently facing a situation where employees are asserting their right to leave extensively.

Could you please provide information on the provisions related to earned leave? Does it apply to employees who have completed one year with the company?

I believe your organization is in Kerala. As per the Kerala Shops and Commercial Establishments Act, an employee who has completed 12 months of service is entitled to 12 days' earned leave. When CL and SL are available during the first year of service itself, the EL is credited once an employee completes one year of service only. In order to make a uniform date of crediting the leave across the organization, we can credit EL for the first calendar proportionately also. That is, if the date of joining is say 1st Sept 2023, on 1st January 2024, we can credit 4 days EL to his leave account along with 12 days CL and 12 days SL. This is for administrative purposes only. However, you can allow the employee to avail the EL only from September 2024.

This shall be provided in the leave policy as well. It shall be appropriate to have the following sentence in the leave policy:

Leaves will be credited to employees' accounts on 1st January of every year. Every employee shall be entitled to the following leaves: Casual Leave: 12 days, Sick leave: 12 days, Earned leave: Every employee who has completed 12 months' service with the company shall be entitled to 12 days' earned leave. In respect of employees who join during the year, they shall be given credit for such a number of leaves calculated in proportion to the number of months of service with the company. However, the employee shall avail the leave so credited only after they complete 12 months of service with the company.

Otherwise, you will have to prefix the date in the HRMS so that automatically on the joining date every year, 12 days EL will get credited. This will be perfect.

Thank you.

We have only mentioned:
- Casual Leave (CL)/ Sick Leave (SL)
- Probationary Leave (PL)
- Earned Leave (EL)
- Maternity Leave (ML)
- Paternity Leave (PL)
- Loss Of Pay (LOP)
- Compensatory Off (CO)
these leaves in our policy.

Is it mandatory to mention 'Special casual leave for sterilization operation' in the policy?

Special casual leave for sterilization is a one-time leave as per the Kerala Shops Act. When your leave policy includes leaves like maternity leave, you can certainly mention special leave for sterilization as well.

One doubt: Do you have a leave called "loss of pay leave," and are there any conditions for that? Will that not be seen as a right to obtain it even though it is unpaid? Moreover, what will be the implications of leave without pay on gratuity? Normally, leave without pay, when approved, should not be considered a break in service, and the period will qualify for gratuity. On the other hand, if a loss of pay leave is not approved, it will be seen as an interruption of service, and the period of LOP will not be counted as service days for determining continuous service.

I appreciate your kind words and am glad that the information was helpful.

"One doubt. Do you have a leave called loss of pay leave, and do you have any conditions for that? Will that not be taken as a right to get it even though it is unpaid?" - Certainly, we have implemented it. The policy was formulated without HR guidance, and I believe that may have led to this situation.

Would you be able to provide clarification on whether it is necessary for our IT firm to allocate 12 days each for casual and sick leave? Currently, we are offering a total of 15 leaves, combining both CL (casual leave) and SL (sick leave).

We can renew the leave policy, right?

As per law, every employee is entitled to 12 days of CL and 12 days of SL during a year (of 12 months), and again after 12 months, 12 days of earned leave (as discussed earlier). The same is applicable to IT companies also, even though you work for five days a week. For legal compliance, you should change it and issue a revised leave policy. While releasing the same, please consider my advice about Loss of Pay leaves. If you put it in the leave policy, it will become documented, and if it is documented, you cannot treat an employee availing it as "absent" without leave and then take action against him. This will lead to a lot of confusion in the future also. From my experience, what I feel is that we should not offer anything that is not legally mandatory. Of course, paternity leave that is now in force shall continue because it has become part of the service conditions for the existing employees, and it is very common among new age establishments.

I appreciate the exchange of ideas. Thank you.

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I appreciate the exchange of ideas. Thank you.