The Flathead County commissioners have requested an opinion from the Montana Attorney General on whether or not paid bereavement leave is an employee benefit that is separate from paid sick or vacation leave.

Opinions from state Attorney General Timothy Fox are issued to answer questions of law raised by public agencies or officials. According to John Barnes with the Attorney General’s Office, an opinion, regardless of the issue, “has the force of law in Montana unless overturned by court,” as is stated in Montana Code Annotated.

In other words, if Fox determines that based on state law, paid bereavement leave is part of paid sick leave, for example, that opinion will be extended to all employees of the state, not just the nearly 600 who work for Flathead County.

Commissioner Randy Brodehl said that to his knowledge, Flathead County is the first to request an opinion on the matter of paid bereavement leave, a benefit that is used for a variety of purposes, including making funeral arrangements, taking care of post-death tasks and grieving.

The question surrounding paid bereavement leave first arose about six months ago after employees with human resources, who were tasked with updating the county’s outdated policy manual, noticed inconsistencies between Flathead County’s handbook and other sample manuals.

According to Flathead County Administrator Mike Pence, employees used a policy manual provided by the Montana Association of Counties (MACo) for guidance during the updating process.

“Human resources spent months updating this policy, going over it sentence by sentence and comparing it to others to make sure we are in compliance with the law,” Pence said. “And it was pretty clear in MACo’s language that bereavement leave was part of sick leave.”

According to Flathead County’s old policy manual, “leave for death of immediate family member” is separate from sick leave. The policy states “employees shall be given bereavement leave with pay for the death of an immediate family member up to a maximum of five days not to exceed 40 hours.”

In addition to the manual, collective bargaining agreements between Flathead County and several labor organizations representing employees provide for paid bereavement leave that is not charged to paid sick leave.

The differences in the policy manual and bargaining agreements, as compared to other manuals, prompted county Human Resource Director Tammy Skramovsky to research language surrounding the benefit in state law.

Skramovsky pointed to a section of the law labeled “state employee, classification, compensation and benefits.” In that section, paid sick leave can be used under 10 different circumstances, including the “death or funeral attendance of an immediate family member or, at an agency’s discretion, another person.”

The county then requested assistance from Whitefish attorney Michael Dahlem, who drafted and sent in the request for the Attorney General’s opinion on behalf of the Flathead County commissioners. The focus of Dahlem’s letter are the collective bargaining agreements.

Among other specifics, Dahlem’s letter points to a 1979 Attorney General opinion that concluded a section of law “establishes maximum and minimum benefits which may not be varied through collective bargaining or other negotiation.”

Ultimately, Dahlem’s letter concludes that “it would be legally impermissible for a public employer to enter into a collective bargaining agreement granting paid bereavement leave that is not charged to paid sick leave,” as is defined by the Montana Legislature.

The county is now awaiting an answer to the letter that was sent earlier this week.

Pence and others emphasized Flathead County is not looking to strip away benefits, but rather are ensuring the county is abiding by state law as they adopt the new policy manual.

“We aren’t trying to take anything away. We needed clarification on the actual laws, and that’s why we asked the AG to give his opinion so we are all on the same page with what the law actually says,” Pence said.

In the interim, language in Flathead County’s policy manual and several collective bargaining agreements has been modified to say that paid bereavement leave is still in place until Fox’s opinion is relayed.

For example, in the collective bargaining agreement between Flathead County and the City-County Health Department, staff are allowed their five days of paid bereavement leave. However, the following has been added: “Upon receipt of the Attorney General’s opinion on bereavement leave, this section will be removed from the contract is paid bereavement leave that is not charged to paid sick leave is deemed to be legal.”

Commissioner Randy Brodehl said it’s “business as usual” until the county receives an answer from Fox.

Reporter Kianna Gardner can be reached at 758-4407 or kgardner@dailyinterlake.com