Vacation Leave          Holidays           Bereavement
 
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Disclaimer: The information contained herein is intended for general informational purposes only and does not constitute legal advice or an opinion on any issue.  Users are advised to seek legal advice from their legal counsel prior to taking (or omitting to take) any action based on the information contained herein.  While we periodically review and update the information contained herein, we do not warrant or guarantee the quality, accuracy or completeness of any information contained herein and the information should not be relied upon as accurate, timely or fit for any particular purpose. This information was constructed on October 15th 2018.

Are Employees entitled to time off [eg. Vacations, sick leave or holidays] in the United States as per Federal Legislation?

Under Section 207(3)(e) of the FLSA, regular rate has been defined not to include payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work or other similar cause, reasonable payments for travelling expenses or other expenses incurred by an employee in the furtherance of his employer’s interests and properly reimbursable by the employer.

In other words, the FLSA does not require payment for time not worked, such as vacations, sick leave or holidays. These benefits are usually a matter of agreement between an Employer and an Employee.

The FMLA is designed to provide employees with temporary job security when faced with certain health-related care responsibilities that preclude them from working. However, it does not provide paid leave.

The FMLA compels employers who employ 50 or more employees to grant qualifying employees up to 12 weeks of unpaid leave for:

  • Birth and care of the Employee’s child, or placement for adoption or foster care of a child with the Employee;
  • Birth and care of the Employee’s child, or placement for adoption or foster care of a child with the employee;
  • Care of an immediate family member (spouse, child, parent) who has a serious health condition; or
  • care of the employee’s own serious health condition.

An Employee will be eligible for FMLA if they have:

  1. Worked at least 12 months (which do not have to be consecutive) for the Employer
  2. Have worked at least 1,250 hours during the 12 months immediately before the FLMA leave date begins.

Further, if the Employee is a family member (spouse, son, daughter, parent or next of kin) of the Armed Forces, the Employer will provide up to 26 weeks unpaid leave to care for a member of the Armed Forces who is undergoing medical treatment, recuperation or therapy. This also extends to members of the National Guard or Reserves.

Are Employees entitled to time off for bereavement in the following states?

In the United States, while there is no law (other than Oregon) that grants bereavement leave to individuals, the U.S. Family Medical Leave Act (FMLA) allows employees to take up to 12 weeks of unpaid leave for family-related matters. The U.S. Fair Labor Standards Act specifies no policies governing bereavement, other than to note that bereavement leave is a matter of employee-employer negotiation. Policies also differ from state to state, as well as organization to organization. For example, the owner or manager of a small business, which might not have its leave policies chiselled in stone, would have the discretion to determine how much bereavement leave to grant to the employee.

Bereavement Leave is only given to the following State:

[https://docs.legis.wisconsin.gov/statutes/statutes/756/255]

Oregon

Oregon requires certain employers with 25 or more employees to provide employees paid bereavement leave. Employers with fewer than 25 employees are not required to provide either paid or unpaid bereavement leave.

Covered employees

An employee is eligible to take bereavement leave under Oregon’s Family Leave Act if they have:

  • worked for the employer for 180 days or more, and
  • worked on average 25 or more hours per week for the 180 days prior to the date the bereavement leave is first taken.

[ORS 659A.156]

25 or more employees

An employer is considered to employ 25 or more employees if it employs at least 25 people:

  • for each working day during 20 or more calendar workweeks in the year the leave is taken, or
  • in the year immediately before the date, the leave would begin.

[ORS 659A.153(1)]

Permitted Uses

Bereavement leave for purpose of the Family Leave Act is defined as leave taken to deal with the death of a family member by:

  • attending the funeral or funeral-alternative;
  • making arrangements associated with the family member’s death; or
  • grieving.

[ORS 659A.159]

Family members

The term “family member” is defined to include:

  • a spouse
  • a same-gender domestic partner
  • a parent, including:
  • a custodial parent
  • a non-custodial parent
  • a biological parent
  • an adoptive parent
  • a foster parent
  • a parent-in-law
  • a parent of a same-gender domestic partner
  • a person with whom the employee was or is in a relationship of in loco parentis
  • a child, including
  • a biological child
  • an adopted child
  • a stepchild
  • a foster child
  • a child of a same-gender domestic partner
  • grandparent
  • grandchild

[ORS 659A.150(4)]

Amount of leave permitted

Oregon’s Family Leave Act permits employees to take up to a total of 12 weeks of leave in a one-year period for all covered purposes. This 12-week total includes any time taken for bereavement leave. [ORS 659A.162]

When taking bereavement leave, employees are allowed take up to 2 weeks of leave for each family member that dies, and the bereavement leave taken must be completed within 60 days of the death of the family member. [ORS 659A.162(2)(a)ORS 659A.159(2)(b)]

Additionally, when multiple family members die at the same time, an employer may not require an employee to take bereavement leave for all deceased family members at the same time. ORS 659A.162(2)(c) Employees are entitled to take separately up to 2 weeks of leave for each deceased family member.

Paid vs. unpaid leave

Employers are not required to pay employees for bereavement leave. They may adopt policies providing for paid bereavement leave. [OAR 839-009-0280(1)] Additionally, employees are permitted to use leave accrued pursuant to any vacation, sick, personal, or other paid leave policy maintained by the employer when taking bereavement leave under the Oregon Family Leave Act. OAR 839-009-0280(2)

Employers may require employees taking bereavement leave to take paid leave accrued pursuant to any vacation, sick, personal, or other paid leave policy and may dictate the order in which such paid leave is to be used, if:

  • it provides the employee written notice prior to the absence that accrued paid leave will be used during the leave period, or
  • within five days after an employee has commenced leave that was unforeseeable, it provides the employee written notice of the requirement that accrued leave be used.

[OAR 839-009-0280(3)]

Notice requirements – Employees

Employees are not required to provide their employers notice before taking bereavement leave; however, employees must provide oral notice to their employer within 24 hours of beginning the leave. [ORS 659A.165(2)(d) & (3)] This notice may be provided by a person other than the absent employee. [ORS 659A.165(3)]

Additionally, an employer may require employees to provide written confirmation of the bereavement leave within three days after returning from the leave. [ORS 659A.165(3)]

Notice requirement – Employer

Employers are required to post a notice explaining the requirements of Oregon’s Family Leave Act, including its bereavement leave requirements, at every establishment where the employees are employed. [ORS 659A.180]

Multiple employees who are family members

Employer must permit employees who are family members to take concurrent bereavement leave. [ORS 659A.162(4)(c)]