Other Leaves: North Dakota
Federal law and guidance on this subject should be reviewed together with this section.
Authors: Joel Fremstad and Lynn Block, Fremstad Law
- There are various types of leave that may be available to an employee in North Dakota. See Leaves of Absence.
- North Dakota does not have a state family and medical leave law applicable to private employers. See Family and Medical Leave.
- An employer is required to excuse employees from work to serve on a jury without an adverse employment action. See Jury Duty Leave.
- An employer may not deprive an employee of employment, lay off, penalize, threaten or otherwise coerce an employee because the employee receives or responds to a summons or subpoena as a witness, or gives testimony pursuant to a subpoena. See Witness Duty Leave.
- North Dakota provides job protection to members of the National Guard or Civil Air Patrol. See Emergency Responder Leave.
Leaves of Absence
There are various types of leave that may be available to an employee in North Dakota. 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
North Dakota does not have a state family and medical leave law applicable to private employers. However, a North Dakota employer with 50 or more employees is likely required to adhere to the federal Family and Medical Leave Act (FMLA).
Jury Duty Leave
An employer may not take an adverse employment action (e.g., terminate, lay off, penalize, threaten or coerce) against an employee because the employee serves as a juror. For more information on jury duty leave, please see Jury Duty: North Dakota.
Witness Duty Leave
An employer may not deprive an employee of employment, lay off, penalize, threaten or otherwise coerce an employee because the employee receives or responds to a summons or subpoena as a witness, or gives testimony pursuant to a subpoena.
Any employer who violates this law is guilty of a class B misdemeanor.
If an employer engages in any prohibited action the employer can be sued by an employee and ordered to pay up to six weeks of the employee's lost wages and reasonable attorney's fees fixed by the court and to reinstate a terminated employee. They can also be found guilty of a Class B misdemeanor.
An employer should consider including a witness duty leave policy in its handbook to educate employees, including supervisors, about the availability of witness duty and to show its compliance with North Dakota law.
Emergency Responder Leave
An employer may not:
- Terminate, demote or in any other manner discriminate against an employee who is a volunteer emergency responder because the employee is absent or tardy from work due to service as a volunteer emergency responder in responding to a disaster or emergency; or
- Discriminate from hiring or otherwise deny employment to an individual who is a volunteer emergency responder, based on the fact the individual is a volunteer emergency responder.
A volunteer emergency responder includes a volunteer member of the Army National Guard or Air National Guard of North Dakota or any other state or a volunteer civilian member of the Civil Air Patrol. +N.D. Cent. Code, § 37-29-01, as amended by +2019 Bill Text ND H.B. 1095.
This leave may be unpaid. The law does not limit an employer from charging against an employee's regular pay the time the employee is absent or tardy while serving as a volunteer emergency responder during a disaster or emergency.
Except for involuntarily activated National Guard members, an employee may not be absent or tardy for more than 20 regular working days in a calendar year.
Employees who will be absent or tardy due to their volunteer emergency responder service must make reasonable efforts to notify their employer of that service.
An employer may request that the employee provide written verification of the times and dates when the employee is absent or tardy due to serving as a volunteer emergency responder. Verification may include a statement from the department of emergency services, the adjutant general's office, the North Dakota wing of the Civil Air Patrol or another appropriate entity.
Emergency responder leave does not apply to:
- An employee of a private entity that provides critical emergency services during an emergency or disaster when the executive officer has determined that the employee's absence would cause an undue hardship or adversely affect the employer's ability to provide critical emergency services; and
- An employee of a private entity whose services have been identified by the employer's executive officer as so critical that the services cannot be performed by another employee and the employee's absence will create the potential for irreparable harm to or permanent closure of the entity.
In these scenarios, the executive officer must make all reasonable efforts to inform such employees that their services are essential and that their absence from work to report for duty as a volunteer emergency responder will be unauthorized. The notice must be provided before the employee reports for volunteer emergency responder duty.
The governor or adjutant general can supersede the decision of the executive officer based upon a determination that the disaster or emergency is so serious that the services provided by the volunteer emergency responder are essential to the emergency response efforts and public safety.
To ensure this leave is managed properly, an employer should develop and implement a process to document all requests for emergency responder leave, as well as each employee's status as a volunteer emergency responder, where applicable. HR and supervisors should be trained on tracking and managing this process.
In addition, 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 Dakota law.
While there is no state law mandating employers provide employees with leave time to vote, employers are encouraged to have a program that provides registered voters with a leave of absence to vote if the employee's work shift conflicts with the times the polls are open. +N.D. Cent. Code, § 16.1-01-02.1.
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.