Other Leaves: North Carolina
Federal law and guidance on this subject should be reviewed together with this section.
Authors: Amie Flowers Carmack and Daniel J. Palmieri, K&L Gates LLP
- There are various types of leave that may be available to an employee in North Carolina. See Leaves of Absence.
- North Carolina does not have a state family and medical leave law applicable to private employers. See Family and Medical Leave.
- An eligible employee is entitled to four hours of school involvement leave per year. See School Activities Leave.
- Domestic violence victims may take time off from work without fear of reprisal in employment. See Domestic Violence Leave.
- An employer may not retaliate against an employee for attending jury duty. See Jury Duty Leave.
- An employer may not terminate or demote an employee because the employee is appointed and serves as a precinct official on election day. See Precinct Official Leave.
- While there are no North Carolina laws mandating employee leave to vote, an employer may not terminate or threaten to terminate an employee for any vote the employee casts, intends to cast or does not cast. See Voting Leave.
- An employee who is called to respond to a state of emergency in the employee's capacity as a volunteer firefighter, member of a rescue squad or member of an emergency medical services agency may take an unpaid leave of absence from work. See Emergency Responder Leave.
- North Carolina law provides eligible employees with military leave. See Military Leave.
Leaves of Absence
There are various types of leave that may be available to an employee in North Carolina. To the extent that applicable federal, state or local laws conflict, an employer should apply the provisions that provide the greatest benefits and protections to the employee.
An employer should remain alert to the various types of leave available and take care to track employees' leaves of absence, including:
- The date the leave begins;
- The type of leave; and
- The expected return date.
An employee who exercises leave rights is not protected from discipline for legitimate reasons that are unrelated to the leave and that are not otherwise prohibited by law.
If an employer must discipline an employee who has exercised his or her leave rights, it should carefully document the reasons for the discipline, review past application of the rule (to ensure the policy is being enforced evenhandedly), and consider whether to seek the advice of counsel before imposing the discipline.
Family and Medical Leave
New Carolina does not have a state family and medical leave law applicable to private employers. However, a North Carolina employer with 50 or more employees is likely required to adhere to the federal Family and Medical Leave Act (FMLA).
School Activities Leave
All employers must provide an employee who is a parent, guardian or person standing in loco parentis of a school-aged child with at least four hours of unpaid leave per year for the employee to attend or otherwise be involved at the child's school.
In loco parentis refers to a relationship in which a person assumes the role of parent for someone who is not their legal or biological child.
An employer may impose the following requirements on such leave:
- The leave must be taken at a mutually agreeable time between the employer and the employee;
- The employer may require that the employee submit a written request for such leave at least 48 hours before the requested absence; and
- The employer may require that the employee furnish a written verification from the child's school that the employee attended or was otherwise involved at that school during the time of the leave.
For purposes of the law, a school includes public schools, private and religious schools, preschool and childcare facilities.
An employer that terminates, demotes or takes an adverse action against an employee who requests or takes parental school involvement leave may be liable for wages or benefits lost, as a result, and must reinstate the terminated or demoted employee to employment without loss of position, seniority, wages or benefits.
An employee must bring the lawsuit within one year from the date of the alleged violation and the burden of proof is on the employee.
An employer should consider including a school activities leave policy in its handbook to educate employees, including supervisors, about the availability of school activities leave and to show its compliance with North Carolina law.
Domestic Violence Leave
An employer may not terminate, demote, fail to promote or discipline an employee because the employee took a reasonable amount of time off from work to obtain to attempt to obtain relief or legal intervention related to their domestic violence victim status.
An employer may require employees to follow its usual time-off policy or procedure, including providing advance notice to the employer (if applicable under the employer's usual procedures), unless an emergency prevents the employee from complying.
An employer may also require that an employee provide documentation of any emergency that prevented the employee from complying with the employer's usual time-off policy or procedure, or any other information available to the employee that supports the employee's reason for being absent.
The Commissioner of Labor enforces the domestic violence leave law.
An employer should consider including a domestic violence leave policy in its handbook to educate employees, including supervisors, about the availability of domestic violence leave and to show its compliance with North Carolina law.
Jury Duty Leave
An employer may not terminate or demote an employee because they have been called for jury duty or because they miss work to serve on a jury. This leave requirement applies to all North Carolina employers regardless of their size. For more information on jury duty leave, please see Jury Duty: North Carolina.
Precinct Official Leave
An employer may not terminate or demote an employee because the employee is appointed as a precinct official and serves as a precinct official on election day or canvass day.
An employee must provide 30 days' written notice before the date the leave is to begin of the employee's intention to take leave as a precinct official.
If an employee is terminated or demoted in violation of the law, the employee will be entitled to be reinstated to that employee's former position; However, the burden of proof is on the employee.
An employee has one year to file a lawsuit against an employer for violation of the law.
An employer should consider including a precinct official leave policy in its handbook to educate employees, including supervisors, about the availability of precinct official leave and to show its compliance with North Carolina law.
While there are no North Carolina laws mandating employee leave to vote, an employer may not terminate or threaten to terminate an employee for any vote the employee casts, intends to cast or does not cast. Violation of this prohibition is punishable as a Class 2 misdemeanor. +N.C. Gen. Stat. § 163A-1388(a)(7).
Emergency Responder Leave
A member of a volunteer fire department, rescue squad or emergency services agency, who is called into service of the State after a declaration of a state of emergency by the Governor or by the General Assembly, or upon the activation of the State Emergency Response Team in response to an emergency, may take an unpaid leave of absence from the employee's civilian job.
An emergency requiring the activation of the State Emergency Response Team is an emergency at Activation Level 2 or greater according to the North Carolina State Emergency Operations Plan of November 2002. Activation Level 2 requires the State Emergency Operations Center to be fully activated with 24-hour staffing from all State Emergency Response Team members.
The choice to take leave is within the discretion of the member.
An employer may not force the employee to exhaust available vacation or other accrued leave from their civilian employment for a period of active service.
The volunteer member/employee's services must be requested in writing by the Director of the Division or by the head of a local emergency management agency. The request must be directed to the Chief of the member's volunteer fire department, rescue squad, or emergency medical services agency, and a copy must be given to the member's employer. An exception to this is for those members whose services have been certified by their employer to the Director of the Division, or to the head of a local emergency management agency, as essential to the employer's own ongoing emergency relief activities - if an employee is so certified, leave will not be allowed.
An employer should consider including an emergency responder leave policy in its handbook to educate employees, including supervisors, about the availability of emergency responder leave and to show its compliance with North Carolina law.
An employee who is a member of the North Carolina National Guard and is called into state service by the governor has the right to take unpaid leave. In addition, North Carolina law provides reemployment rights to members of the North Carolina National Guard or the National Guard of another state who are honorably released from state duty.
For more information on military leave, please see USERRA: North Carolina.
North Carolina law does not require that private employers provide their employees with paid vacation, nor are employers required to observe any legal holidays. +N.C. Gen. Stat. § 95-25.12. Instead, vacation is viewed as a benefit of employment that may or may not be provided at the employer's discretion. However, if an employer decides to offer vacation time or payment in lieu of time off, the employer must have a written vacation policy addressing, at a minimum, the following:
- How and when vacation is earned so that the employees know the amount of vacation to which they are entitled;
- Whether or not vacation time may be carried forward from one year to another, and if so, in what amount;
- When vacation time must be taken;
- When and if vacation pay may be paid in lieu of time off; and
- Under what conditions vacation pay will be forfeited upon discontinuation of employment for any reason.
If an employer fails to notify an employee regarding its vacation policies, any vacation leave allowed may not be forfeited. +N.C. Gen. Stat. § 95-25.12. Notification of an employer's vacation policies and/or practices must:
- Be made orally or in writing at the time of hiring;
- Be made available, either in writing or through a posted notice maintained in a place accessible to employees; and
- Prior to the effective date of any changes, be provided to employees in writing or through a posted notice maintained in a place accessible to the employees.
Although oral policies are permitted, written policies are strongly recommended to avoid later disputes about the content of the policy. Ambiguous policies are construed in favor of the employee. +13 N.C. Admin. Code § 12.0306(b).
Employers should be aware that certain leaves are protected by state law and therefore it should train its supervisory employees not to take action against an employee because he or she took leave or indicated that he or she may take the leave in the near future. See Training and Development: Federal.
There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.