The Family and Medical Leave Act (FMLA) of 1993 governs bereavement leave, allowing eligible employees to take up to 12 weeks of unpaid leave within a 12-month period. The FMLA applies to public agencies, public and private elementary and secondary schools, and companies with 50 or more employees.
The effective date of the FMLA is August 5, 1993, with a threshold of 1,250 hours of service in the 12 months preceding the start of leave.
Bereavement Leave Standard
The FMLA provides a national standard for bereavement leave, but it does not explicitly require employers to provide paid bereavement leave. Under 29 CFR 825.100, employers must provide eligible employees with up to 12 weeks of unpaid leave for certain family and medical reasons, including the death of a family member. In plain terms, this means that employers with 50 or more employees must allow eligible employees to take time off for bereavement, but they are not required to pay them for that time.
This is where the law gets teeth: the FMLA imposes a $4,113 penalty for willful violations, and employees may also recover back pay, front pay, and other damages. The statute of limitations for filing a complaint under the FMLA is 2 years, or 3 years for willful violations.
In practice, this means that employers must have a written policy outlining their bereavement leave procedures, and they must provide employees with at least 30 days’ notice before the start of leave, unless the need for leave is unforeseen. The policy must also comply with the Uniformed Services Employment and Reemployment Rights Act (USERRA), which provides additional protections for employees who are also service members.
When Bereavement Leave is Allowed
Under 29 USC 2612, employers must grant bereavement leave to eligible employees who have worked for the employer for at least 12 months, and have completed at least 1,250 hours of service in the 12 months preceding the start of leave. The leave must be taken within 12 months of the family member’s death, and the employee must provide the employer with at least 30 days’ notice, unless the need for leave is unforeseen.
The FMLA allows employees to take bereavement leave for the death of a spouse, child, or parent, and employees may also take leave to care for a family member with a serious health condition. In plain terms, this means that employees may take time off to care for a family member who is seriously ill, or to attend to their own serious health condition.
When Bereavement Leave is Not Allowed
Under 29 CFR 825.112, employers are not required to provide bereavement leave to employees who have not completed the requisite 1,250 hours of service, or who have not worked for the employer for at least 12 months. The FMLA also does not require employers to provide paid bereavement leave, and employers may require employees to use accrued paid leave for bereavement.
The FMLA imposes a fine of up to $10,000 for each willful violation, and employees may also recover back pay, front pay, and other damages. The statute of limitations for filing a complaint under the FMLA is 2 years, or 3 years for willful violations, and the court may also award liquidated damages in an amount equal to the amount of back pay owed.
The Process for Requesting Bereavement Leave
Under 29 USC 2612, employees must provide their employer with at least 30 days’ notice before the start of leave, unless the need for leave is unforeseen. The employee must also provide the employer with a certification from a healthcare provider, which must include the date the condition commenced, the probable duration of the condition, and the medical facts regarding the condition.
The employer must respond to the employee’s request for leave within 5 business days, and the response must include a statement of the employee’s rights and responsibilities under the FMLA. The employer must also provide the employee with a written designation of the leave as FMLA leave, which must include the amount of leave that will be counted against the employee’s 12-week entitlement.
In practice, this means that employees should provide their employer with as much notice as possible, and should also provide the employer with any required certifications or documentation. The employee should also keep a record of all correspondence with the employer, including the date and time of any phone calls or meetings.
State-by-State Variation
Some states, such as California and New York, have their own family and medical leave laws, which provide additional protections for employees. Under California’s Family Rights Act (CFRA), for example, employers with 50 or more employees must provide eligible employees with up to 12 weeks of unpaid leave for certain family and medical reasons, including the death of a family member. The CFRA also provides a $4,000 penalty for willful violations, and employees may also recover back pay, front pay, and other damages.
In New York, the Paid Family Leave (PFL) law provides eligible employees with up to 12 weeks of paid leave for certain family and medical reasons, including the death of a family member. The PFL law imposes a $2,000 penalty for willful violations, and employees may also recover back pay, front pay, and other damages. The statute of limitations for filing a complaint under the PFL law is 3 years, and the court may also award liquidated damages in an amount equal to the amount of back pay owed.
Special Situations or Exceptions
Military Leave
Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), employers must provide eligible employees with up to 5 years of unpaid leave for military service. The USERRA also provides a $10,000 penalty for willful violations, and employees may also recover back pay, front pay, and other damages.
Small Employers
Under 29 USC 2611, employers with fewer than 50 employees are not required to provide bereavement leave under the FMLA. However, some states, such as California and New York, have their own family and medical leave laws, which may apply to smaller employers.
Enforcement and Consequences
The U.S. Department of Labor’s Wage and Hour Division (WHD) is responsible for enforcing the FMLA, and the WHD may impose fines and penalties for noncompliance. The WHD may also require employers to provide back pay, front pay, and other damages to affected employees.
In recent years, the WHD has increased its enforcement efforts, and has imposed significant fines and penalties on employers who have failed to comply with the FMLA. In one recent case, the WHD imposed a $1.3 million penalty on an employer who had failed to provide bereavement leave to eligible employees.
- Office of the Law Revision Counsel. relevant federal statute
- U.S. Courts. federal court procedures
- USA.gov. relevant government resource
