Bereavement Leave Laws in Wisconsin: What Employers Must Allow

The Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., permits eligible employees to take unpaid, job-protected leave for certain family-related reasons, including the serious health condition, incapacity, or death of a spouse, child, or parent. The U.S. Department of Labor regulations at 29 CFR § 825.113 specifically address leave taken to make arrangements for or attend the funeral of a family member, or to attend related bereavement activities.

FMLA applies only to employers with 50 or more employees within 75 miles and covers employees who have worked there for at least 12 months and completed 1,250 hours of service in the preceding 12 months. The statute provides up to 12 weeks of unpaid leave per 12-month period, and employers must maintain health insurance coverage during leave. FMLA leave is job-protected, meaning the employee has the right to return to the same or an equivalent position. The U.S. Department of Labor enforces the FMLA.

Wisconsin has no state statute mandating bereavement leave. Unlike some states, Wisconsin's employment code (Wisconsin Statutes Chapter 109) does not require employers to provide unpaid leave for the death of a family member or for funeral arrangements and related bereavement activities. This means Wisconsin employers are not legally obligated under state law to grant bereavement leave to any employee, regardless of company size or employee tenure.

Because Wisconsin imposes no bereavement leave requirement, federal FMLA is often the only legal mandate available to employees, and only if they work for a covered employer. However, Wisconsin does not prohibit employers from offering bereavement leave voluntarily, and many Wisconsin employers choose to include bereavement leave in employee handbooks, benefits policies, or collective bargaining agreements as a matter of business practice and culture.

Under Wisconsin's at-will employment doctrine (the default legal rule in the state), employers may set their own policies on bereavement leave. Employees may negotiate bereavement leave as part of employment contracts or union agreements, but there is no minimum legal requirement. If an employer promises bereavement leave in a handbook or contract, Wisconsin courts may enforce that promise under contract law, but the state does not independently guarantee the right.

Some public-sector employees in Wisconsin may have bereavement leave as part of civil service rules or union contracts, but no blanket state requirement applies to public or private employers.

Wisconsin employers have no legal obligation to provide bereavement leave under state law, so the primary exception is simply that state law does not apply. Federal FMLA is the main legal protection, but it has significant exclusions: employers with fewer than 50 employees within 75 miles are not covered; employees who have not worked 12 months or completed 1,250 hours in the past 12 months are not eligible; and federal employees and certain other workers are covered under different statutes.

FMLA does not require paid leave—only unpaid, job-protected leave—and employers may require employees to use accrued paid time off (vacation or personal days) during bereavement leave. Employers may also require certification of the family relationship and may impose waiting periods for leave to make arrangements compared to leave to attend the funeral. Small Wisconsin employers (under 50 employees) have no legal requirement to provide any bereavement leave, paid or unpaid.

Union members and public employees may have contractual or statutory bereavement leave rights that supersede the lack of a state mandate, but private at-will employees in Wisconsin have no guaranteed bereavement leave unless their employer has voluntarily promised it. Employers may also condition bereavement leave on providing notice within a reasonable time and may limit the duration based on company policy rather than law.

Step 1: Document Your Situation. Keep records of the death (obituary, funeral program, death certificate if available), your notice to your employer (email, text, or written record of verbal notification), your employer's response or lack thereof, and any communications about leave or return-to-work. Document the dates of your absence and whether you were told leave was denied or that you must use paid time off without approval.

Step 2: Check Your Employer's Bereavement Policy. Request your employee handbook or benefits summary from HR in writing (email is best). Look for any bereavement leave provision, the number of days allowed, and whether leave is paid or unpaid. If a written policy exists and your employer violated it, you have a contract claim in Wisconsin. If no policy exists or your employer has not enforced it, note this.

Step 3: Determine If Federal FMLA May Apply. Check whether your employer has 50+ employees within 75 miles, you have worked there 12+ months, and you have 1,250+ hours of service in the past 12 months. If so, you may have FMLA rights. The Department of Labor's Wage and Hour Division website at www.dol.gov/agencies/whd/fmla provides resources. You do not need to file a charge; you can send a written request to your employer's HR department citing FMLA rights. Keep a copy of your request.

Step 4: Contact the Department of Labor Wage and Hour Division (Federal). If your employer denied FMLA leave or retaliated against you for taking leave, file a complaint with the U.S. Department of Labor, Wage and Hour Division, at www.dol.gov/agencies/whd/complaints or by phone at 1-866-4-USDOL. The WHD will investigate whether your employer violated FMLA. This is free and can take several months.

Step 5: Consult a Wisconsin Employment Attorney. If your employer violates a written bereavement policy, an employment law attorney can file a breach of contract claim in Wisconsin state court. If you experience retaliation for requesting bereavement leave (such as termination or demotion), consult an attorney about whether you have claims under FMLA, whistleblower law, or wrongful termination depending on the facts. Initial consultations are often free.