In legal terms, bereavement leave refers to a leave of absence from work in which an employee grieves the death of a close or immediate family member. This leave may be used to grieve, plan and/or attend the funeral, attend a wake or shiva, and attend to any other death related matters. Some examples could include settling the estate of the deceased, and other such arrangements.
Such leave would be governed by the Fair Labor Standards Act, or the “FLSA.” However, the FLSA does not require employers to provide paid bereavement leave to their employees. This includes time away from work for funerals. Bereavement leave is generally an agreement between an employer and the employee, and as such, there is very little state or federal regulation. As of 2014, Oregon is the first and only state in the United States to require certain employers to allow qualifying employees to take bereavement leave following the death of a family member. These employers must have twenty five or more employees.
In the United States, employees in all states are able to utilize thirteen days of sick leave for bereavement purposes. When considering employment law, family members that may be considered immediate can include:
- Parents, stepparents, and in-laws;
- Spouses or domestic partners;
- Children and stepchildren;
- Siblings, in-laws, and step siblings;
- Grandparents and grandchildren; and
- An adult who stood in loco parentis to the employee when they were a child.
Can Bereavement Leave Be Taken For the Death of a Non Family Member? What About Additional Time Off?
Employees may take time off of work for the death of a non family member. However, not every employer may allow this. The likelihood of bereavement leave being granted may depend on whether the employee works full time or part time. Typically, employers will offer bereavement leave benefits for the death of a non family member to full time employees.
Some companies will allow for additional paid time off for employees who are grieving the loss of a loved one, although this time off is generally unpaid. If a company does not grant more leave, the employee may be able to utilize accrued sick time in order to take a leave from work. In general, employees are usually entitled to use up to 104 hours of sick leave annually for the purposes of bereavement and/or family care. This number amounts to thirteen days. However, it is important that you carefully review your employee handbook or employment contract in order to verify that fact, or to obtain more information, due to the fact that employers may grant more time for bereavement and/or family leave than what is required by state or federal law.
What Else Should I Know About Leave of Absence?
As previously mentioned, various types of leave of absence exist and may be paid or unpaid. This usually depends on the agreement between the employer and the employee. The exact length of the leave of absence will also vary from employer to employer, as well as from state to state. This is also true for associated issues such as work substitutions. In most cases, leave is taken under the Family and Medical Leave Act.
In short, the FMLA guarantees that a person taking valid leave of absence for certain family or medical purposes will return to their position when they return from their leave. There are many exceptions to this law, and criteria that must be met by both the employer and the employee. Under the Act, employers may not fire an employee who has taken a leave of absence under FMLA provisions or similar laws. Some exceptions to this include but may not be limited to:
- The size of the company;
- Whether the worker was a “top earner,” if their return would constitute a substantial or grievous financial burden to the business;
- Company wide layoffs that occur during the leave of absence;
- Improper filing, such as if the employee failed to provide their employer with adequate notice of their taking FMLA leave; and
- Issues regarding pay and wages.
Disputes regarding leave of absence are generally solved internally, through the human resources department or a meeting between the employee and their supervisor. More serious violations and illegal actions may require a lawsuit to remedy the situation. Legal remedies could include being reinstated to your previous position and/or legal damages for lost wages.
Do I Need an Attorney for Bereavement Leave Issues?
A skilled and knowledgeable employment attorney can help you review your employment contract and advise you regarding your best course of action in order for you to receive the leave you need. An experienced employment law attorney can also help you through the process of filing a lawsuit if you were wrongfully denied bereavement leave. Finally, an attorney can represent you in court as needed.