Ohio Bereavement Laws: An Overview
Bereavement leave is a workplace provision that allows employees time off to grieve, arrange memorials for, or deal with the estate of a deceased relative or loved one. Bereavement leave establishes a specific amount of time that an employee may use consecutively to tend to their personal matters related to a loss.
Understanding bereavement leave is not only important for employers and human resource specialists when drafting bereavement leave policy, but also for employees so that they understand what entitlements they have following the death of a loved one. It can also be useful in the context of other types of protected medical leaves under Ohio law, as an employee may be entitled to both bereavement and family medical leave for tending to a personal matter.
In Ohio, employers are not required under state law to provide employees bereavement leave. However, once an employer has created a bereavement leave policy it must be administered without regard to race, color, religion, sex, national origin, age, disability, or genetic information. Employers may choose to provide 1 to 5 days of unpaid or paid bereavement leave for employees to attend a loved one’s funeral, make funeral arrangements, or to handle matters attending his or her death. Under current state policy, the specific number of days an employee is given may be outlined in their employee manual or contract and may vary depending on the relationship between the employee and deceased. For example, employers may give employees more time to grieve the loss of a family member than a distant relative like an uncle . Bereavement leave is usually taken all at once, though not always consecutively. In most cases, an employee would be allowed to take bereavement leave each day for a set period of time after the loss.
Under federal law, employers with more than 50 employees are required under the Family and Medical Leave Act (FMLA) to give employees up to 12 weeks of unpaid family medical leave. Employees are required to have worked at the organization for at least 12 months, for a minimum of 1,250 hours, and the employer must have at least 50 employees within 75 miles in Ohio or nearby. FMLA permits an employee to take leave to care for a spouse, parent, or child who has a serious health condition. An employee seeking FMLA leave after a loved one dies, if they have been employed long enough and for the required hours, may be able to take FMLA leave in the 12 weeks following the death of a family member based on a serious health concern.
Federal law also requires that employers with more than 15 employees give workers 12 weeks of unpaid leave under the Americans with Disabilities Act (ADA). This leave can be used in conjunction with FMLA leave if a serious health concern arises under the circumstances of the passing of a loved one.
The details of the bereavement leave policy should be outlined in the employee handbook. When creating a bereavement leave policy, employers should take care to include appropriate clauses about continuity of benefits upon the death of an employee. Any instructions on utilizing bereavement leave should also be detailed in the employee handbook.
Ohio’s Legal Perspective on Bereavement Leave
Unlike other types of leave, bereavement leave is not governed by any federal laws. While FMLA allows for time off due to a serious health condition of a spouse, child or parent, there is no law that requires companies to provide a certain number of paid or unpaid days of leave for employees who have lost a loved one. While many companies are not legally required to provide bereavement leave, many choose to do so. In addition to being a show of compassion for grieving employees, providing bereavement leave also comes with other benefits, including: Unlike other forms of medical leave such as Family Medical Leave Act (FMLA) or Ohio Family Military Leave, companies are not legally bound to provide bereavement leave to their employees. Consequently, most federal organizations, particularly those with less than 50 employees, do not provide bereavement leave as part of their employee handbook. For employers in Ohio, providing bereavement leave is completely optional, except perhaps under other local or municipal provisions, such as in Columbus, for instance. Although not required, some companies in Ohio and surrounding areas may elect to provide bereavement leave for a set number of days, such as three or five days of leave for the death of an immediate family member. Immediate family members under bereavement policies often includes parents, siblings, grandparents, children, and spouses. Some companies may elect to allow employees to use their vacation days toward additional bereavement time. Others allow employees to take up to two weeks off to grieve.
Employer-Specific Bereavement Leave Policies
Employers in Ohio are generally not required to provide bereavement leave. So long as the employer does not have a policy in place that provides for bereavement leave, and so long as the leave is not covered under another category such as vacation time or under an employment contract, the employer is not required to give time off for an employee’s loss of a loved one. Employers are also not required to pay employees for this type of leave unless the employer has adopted a policy or collective bargaining agreement that provides for such leave and time off.
Catholic Charities of the Diocese of Toledo v. Jackson, 104 Ohio St. 3d 334, 2002-Ohio-3332, 819 N.E.2d 686, was one of the first Ohio Supreme Court decisions to interpret Ohio’s FMLA for Leave due to Bereavement Act. Orsbon v. Burns Int’l Security Servs., 164 Ohio App. 3d 599, 843 N.E.2d 1256 (10th Dist. Franklin 2006) was one of the first Ohio appellate court decisions to interpret the law. In Orsbon (April 27, 2006) as with Jackson, the court referenced the provisions of the federal FMLA in its analysis of the state law. It emphasized that the federal regulation is particularly instructive in determining the scope of Congress’ intent in passing both laws.
The federal FMLA provides for a maximum of 12 workweeks of leave during any 12-month period without pay for the birth of a child or placement of a child with the employee for adoption. It further provides for a maximum of 12 workweeks for care of a spouse if the spouse has a serious health condition. The federal FMLA regulations, however, do not specifically address the question of whether a caregiver will have to pay the employee for leave. The federal courts generally interpret that it is up to the employer to decide whether substitution or pay is needed during leave.
Many Ohio employers do not have a policy or collective bargaining agreements that specifically provide for leave for a death. However, many employers provide for up to three days of paid leave for the death of a family member under their PTO, Sick time or Vacation time policies.
Employee-Specific Rights and Protections
Under federal law, all employers must comply with the Family and Medical Leave Act (FMLA). FMLA applies to any public or private employer who employs 50 or more employees within a 75-mile radius for each working day of twenty or more calendar weeks in the current or preceding calendar year. Under FMLA, an employee is entitled to take up to 12 weeks of leave for the employee’s own illness or injury, pregnancy, adoption or foster care placement of a child, or assist a family member on active military duty. FMLA doesn’t address leave due to bereavement for the death of a family member, but under FMLA, a family member includes: spouse, child, stepchild, parent, stepparent, parent-in-law, grandparent, grandchild, and a person with whom the employee has a relationship that is like a family relationship. For more information about Family and Medical Leave Act, click here. Under Ohio law, employers are not required to provide bereavement leave; however, they must comply with their written policies concerning bereavement leave and allowances. For example, if an employee handbook provides a specific number of days for bereavement leave, the employer must allow the employee to take bereavement leave for the specified number of days or whatever is reasonable if there is no specified number of days. Additionally, to protect non-competitive applicants, Ohio Revised Code Section 124.383 requires specific state employees and public officials to immediately surrender their salary or pay to the state for each day they are absent from work for purposes of attending the funeral of a relative. Under Ohio Revised Code Section 124.383(E), "relative" is defined as spouse, child, stepchild, step-parent, parent, spouse’s parent, brother, step-brother, sister, step-sister, grandparent or grandchild. The law applies to: If an employer policy concerning bereavement leave violates Ohio Revised Code Section 124.383, then upon request of a person or organization, the Ohio Attorney General shall take action on behalf of such person or organization for an injunction or other relief to prevent or remedy a violation. If an employee feels that an employer has violated a bereavement leave policy, the employee may file a complaint against the employer. An employee may file a complaint with the U.S. Department of Labor, Office of Administrative Law Judges, for alleged violations of FMLA. For alleged violation of Ohio Revised Code Section 124.383, the person or organization may file an action with the appropriate court for an injunction or other relief. Ohio Revised Code Section 124.383(F)(3).
Best Practices for Promptly Requesting and Taking Bereavement Leave
When it comes to requesting bereavement leave, there are few things as important as providing communication and documentation. Providing such information will not guarantee that the employer will grant the leave, but it can provide for the necessary groundwork to access further leave under the Family and Medical Leave Act ("FMLA") . With that in mind, here are a few notes for employees on requesting and obtaining bereavement leave: If an employee is uncertain about any of the described policies, the employee should seek clarification from the employer. Researching policies prior to a death will only save time when a death does occur.
Common Questions About Ohio’s Bereavement Leave Laws
As with most employment laws, there are questions that frequently come up about the particularities of Ohio’s bereavement leave laws, whether or not an employer has one. Here are some of the most common questions and their answers.
- How do I know if my employer is required to give me bereavement leave under Ohio Law? If they have a policy in place, it likely applies to you. Ohio law does not mandate employers provide bereavement leave, but instead allows them to design policies and procedures their employees can expect when such tragedy hits their families.
- What are my rights under workers’ compensation for taking time off to grieve for someone who died at work? Work-related deaths are sad tragedies. They are in large part preventable by businesses struggling to keep their workers safe. If a loved one died while working for their employer, the grieving family has every right to file a workers’ compensation claim. This means all medical and funeral expenses may be covered by the employer’s workers’ compensation policy, and weekly compensation benefits will be determined by how much the deceased employee made before the accident.
- What happens if I get in a car accident on the way to my loved one’s funeral? Drivers in Ohio have the right to take time off from work for bereavement leave in their family. Some drivers are unable to take bereavement leave because the date falls on their work schedule. If they can take leave but choose to drive to the funeral, they may not be covered under workers’ compensation for a car accident. Since they were not driving to and from work, but instead for a family event, they are no longer covered while on a personal, private errand.
- I’m required to use my paid leave time for bereavement leave at work. Can they force me to use up my paid time off? Some laws require employers to provide paid benefits, such as FMLA, but the majority of laws do not. Unless your job requires you to use up your accrued time off, it’s perfectly acceptable. Remember: The employer does not have to give you paid leave, but they can if they wish to do so.
- If I don’t have PTO benefits or FMLA, is it discrimination for my employer to terminate my employment because I took an extended amount of bereavement leave? It would not be discrimination. FMLA protects employees from being terminated during certain leave, and Ohio’s "10 or more" laws protect employees from termination if they have been employed 12 months or longer and have worked in the previous 12 months as well. However, if your employer only allows 3 days of bereavement leave (as is customary with many employers, even those with policies), then if you were gone for longer than that, it is likely they will terminate your employment.
The Future of Bereavement Laws in Ohio
As the landscape of employment laws continues to evolve, it remains to be seen whether Ohio’s bereavement laws will change in the years to come. Although no major legislative changes are currently on the horizon, Ohio lawmakers may consider implementing new bereavement-related legislation in the future. Such legislative changes may take several forms, including proposed laws that provide greater bereavement leave protections for employees or the enactment of a bereavement leave program similar to the one recently introduced by the City of Columbus.
If Ohio elected officials and policymakers eventually choose to expand the scope of bereavement leave entitlements, it is likely that a state-wide bereavement policy would be implemented, allowing all employees to receive an increased number of paid or unpaid bereavement leave days. Similar to the paid leave and paid sick leave initiatives that have become increasingly common in recent years, a state-wide bereavement leave policy could require employers to provide employees with a specific amount of paid bereavement leave days in order for them to grieve the loss of loved ones and handle the necessary affairs that process entails .
While the future of Ohio bereavement laws is uncertain, the introduction of a statewide bereavement policy would be a significant change that would impact both employers and employees. On one hand, increased bereavement leave entitlements could create more work for Indiana employers in the short-term due to undesirable absences, whereas the failure to comply with these additional entitlements would result in potential legal liability for the employer. On the other hand, these changes would assist employees in grieving the loss of their loved ones and provide the time off needed to deal with the emotional turmoil and stress accompanying the death of a family member.
Although the status of Ohio bereavement laws is uncertain, Ohio employers must continue complying with federal bereavement leave requirements, and should stay informed about future legislative developments. As we look to the future, it remains to be seen whether bereavement leave entitlements will be expanded in the years to come.