The Family and Medical Leave Act, or “FMLA,” is a federal labor law that was passed in 1993. The Act requires covered employers to provide their employees with job protected and unpaid leave for qualified medical and family circumstances. Additionally, the Act provides rights and protections associated with medical leave for employees, and may continue unpaid leave for up to twelve weeks.
The Act also requires that covered employers preserve the health benefits for all eligible workers, so it is as if they were still actively working. During this time, the employee’s position is protected, which means that they may not be legally terminated.
As a federal law, the Act preempts state laws, even if those laws conflict with each other. What this means is that employees who work in states that offer little or no family and medical leave could still be protected under the FMLA. Some states may have laws which provide more coverage, depending on specific health or medical circumstances; however, most states do not provide more leave than what is required of them by federal law.
It is important to note that not all employers are required to provide the benefits required by the FMLA. Federal law has determined that employers are required to provide all eligible employees with leave, only if the employer meets one of the following criteria:
- The employer is a state, local, or federal governmental agency;
- The employer is a private business that conducts interstate commerce, and has fifty or more employees that work twenty or more weeks in one year; or
- The employer engages in commerce, or an industry that affects commerce. Nearly every business meets the requirement for being either commerce or affecting commerce.
There are some specific responsibilities that employers have under the FMLA. An example of this would be how employers are not permitted to terminate an employee who takes family or medical leave for any reason, as long as the reason is outlined in the FMLA. Additionally, employees who are working for employers who are covered by the FMLA have a right, under federal law, to take leave if they qualify.
Finally, employers cannot reprimand the employee for taking this leave, and the employer may not discriminate when granting FMLA leave. What this means is that they cannot provide leave to one employee but not the other when the circumstances are largely similar.
What Is Bereavement Leave?
In a legal context, 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, rosary, or shiva, among other such remembrances; and
- Attend any other death related matters. An example of this would be settling the estate of the deceased, and other such arrangements.
Such leave would generally be governed by the Fair Labor Standards Act, or the “FLSA” as was previously discussed. However, the FLSA does not require employers to provide paid bereavement leave to their employees, which includes time away from work for attending a funeral. Bereavement leave is generally an agreement between an employer and the employee, and as such, there is very little state or federal regulation of the practice.
As of 2014, Oregon is the first and only state in the United States to require specific employers to allow qualifying employees to take bereavement leave, following the death of a family member. Among other qualifications, these employers must have twenty-five or more employees.
However, in the United States, employees in all states are able to utilize thirteen days of sick leave for bereavement purposes. In an employment law context, family members that may be considered immediate can include but may not be limited to:
- 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 I Take Bereavement Leave For The Death Of A Non-Family Member?
Employees are allowed to take time off of work for the death of a non-family member. However, not every employer may allow this, and the likelihood of bereavement leave being granted may depend on whether the employee works full time or part time. Generally speaking, employers will offer bereavement leave benefits for the death of a non-family member, but only 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 when it is requested, the employee may be able to utilize accrued sick time in order to take a leave from work.
Generally speaking, employees are 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. 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 A Leave Of Absence In General?
Various types of leave of absence exist, and may be either paid or unpaid. This generally 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. Additionally, this is true for associated issues such as work substitutions.
The FMLA guarantees that a person who is 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, as well as qualifying criteria that must be met by both the employer and the employee.
According to 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,” and if their return would constitute a substantial or grievous financial burden to the business;
- Company wide layoffs that occur during the employee’s 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 associated with pay and wages.
Disputes regarding leave of absence are generally resolved 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 in order to remedy the situation. Legal remedies could include being reinstated to a previous position, and/or legal damages for lost wages.
Do I Need A Lawyer For Bereavement Leave Issues?
If you are experiencing issues associated with bereavement leave, you should consult with an employment attorney. A knowledgeable employment lawyer can advise you of your legal rights and options under your state’s specific employment leave laws, and will also be able to represent you in court, as needed.
