Right to rest: Regulations for time off

When an employee requests time off work, employers are accountable for negotiating pay, how long the leave will be, covering the workload, and any reasonable accommodations in their absence or return. While some of the decisions are entirely up to the employer, there are many regulations which must be understood by employers, relevant to the type of leave.  

In this article, we outline the various reasons employees may request time off work, and the different regulations and rules for managing workforces in the UK, Europe, and the US.

Reasons for taking time off work

There are many reasons an employee may take time off work, and the type of leave often dictates the length of time they will be away from work.

Holiday/Vacation

Employees are entitled to a minimum amount of paid annual leave, dictated by the company in the employee contract. The minimum amount of leave an employee is entitled to is also regulatorily controlled — different countries have different standard minimums. In the UK, this is 5.6 weeks’ paid holiday per year. In the EU, employees are entitled to at least 4 weeks’ paid holiday annually. In the US, this is dictated at the state level, as there’s no federal minimum.

Employees may choose to use their annual leave entitlement for holidays/vacations and days off work.

Sickness or injury

An employer can dictate the amount of sick leave their employees are allocated each year. Like annual leave, this is also different by country — in the UK, it’s one to five days per year; in the US, employees can accrue sick days, as they earn one hour of paid sick leave for every 30 working hours; and in Europe, this changes by country.

Employees may utilize sick leave if they’re feeling unwell or sustained an injury. Sick leave usually begins as paid leave, but if the employee needs to take more time off, any further pay will need to be discussed.

Employees aren’t usually entitled to specific leave for medical appointments, so oftentimes, they’ll need to use their annual leave to do so.

If an employee is disabled or suffering from a long-term health condition, employers must make “reasonable accommodations” related to the disability. If they refuse, they could be sued for discrimination.

Childbirth and adoption

If an employee is expecting a baby, they’re usually entitled to parental leave when they give birth or adopt a child. The length of this leave, and how much of it is paid, should be discussed by the employee and employer, or written into the employment contract if known beforehand. Paternity leave tends to be shorter than maternity leave, but new parents can also opt to take unpaid parental leave. Some companies, like Smirnoff, Baileys, Guinness, Diageo, Aviva, and Investec offer equal parental leave.

Caring for a ‘dependent’ or grieving a loss

Employees who are ‘dependents’ (that is, they have someone dependent on them, such as a child, partner, elderly parent, or disabled family member) are typically offered unpaid leave, unless their contract states differently.

Employers should have policies in place to approach time off requests which may not fall under their contracted allowance. Bereavement pay may be offered, but this isn’t mandatory. Employees usually have to approach their employer with a reasonable timeframe, and understand the leave will be unpaid unless agreed differently.

There’s a different law in place when an employee’s child passes away.

Jury duty

Employers must agree to time off work for any employee called for jury duty. Though a mandatory service, employees aren’t usually paid for this time off, but they can claim back lost earnings from missed days at work from the courts.

Career break, sabbatical, or study

Employees may request unpaid leave for a temporary break to focus on something else. How long this is, and any pay, is up to the employer to negotiate. An employer can also reject this request.

Though these are considered valid reasons for taking time off work, employers don’t have to accept or agree to all of them. Employees have a right to take time off under certain circumstances — referred to as ‘statutory rights’ — but an employment contract should break down and clearly state the extent of paid or unpaid leave allowances.

Legislation on taking time off work

There are many legislations in place on taking time off work to ensure employers treat all employees fairly.

Employment Rights Act 1996

The Employment Rights Act 1996 is a UK law that establishes the rights of employees, with particular focus on dismissal, parental leave, and redundancies. The Act incorporates the Contracts of Employment Act 1953, the Redundancy Payments Act 1965, the Employment Protection Act 1975, and the Wages Act 1986.

It aims to provide an overarching framework for the protection of workers in the UK.

Some of the stipulations in the Act that employers should take note of include:

• Employees are entitled to a break of at least 20 minutes if they work over six consecutive hours

• Employees are entitled to up to 52 weeks of maternity leave and one week of paternity leave

• Employees are entitled to further benefits for long service

• Notice periods must be of reasonable length, and noted in advance by both employer and employee

• Employers must provide valid reasoning for dismissal, and are subject to unfair dismissal charges if they can’t substantiate their reasons

• If an employee is dismissed due to redundancy, the employer owes them redundancy pay if they’ve been at the company for more than two years

An amendment in 2019 quadrupled the maximum fine for a serious breach of worker’s rights. It’s therefore in an employer’s best interest to familiarize themselves with the laws under the Employment Rights Act 1996 to ensure they’re treating staff fairly, and won’t be subject to any costly damages to brand reputation.

The Family and Medical Leave Act (FMLA)

In the US, the Family and Medical Leave Act is a federal law that allows employees to take unpaid leave due to family or personal medical issues, while protecting job security. After the leave, employees should be reinstated at their company to the same or equivalent role.

The FMLA aims to help employees balance work and family, and promote equal employment for men and women. It applies to all public agencies, public and private elementary and secondary schools, and companies with more than 50 employees.

The law mandates that employers must provide eligible employees up to 12 weeks of unpaid leave for one of the following reasons:

• The birth and care of a child
• For adoption or foster care placements
• To care for a spouse, child, or parent with a serious health condition
• To take medical leave when the employee is suffering a serious health condition
• Military family leave provisions were added to the FMLA in 2008.

The Working Time Regulations 1998

This law dictates the ‘right to rest’ and is applicable to the EU, England, Scotland, and Wales. Employers must allow their employees the following rest periods during working hours:

• 20 minute rest break for more than 6 working hours during the day

• 11 hours rest between working days

• 24 hours of rest every 7 working days or 48 hours rest every 14 working days

• Annual holiday entitlement

This applies to both office and remote employees, apprentices, casual and seasonal workers, doctors in training, and zero-hours workers.

Young workers

The Act also sets legal working limits for young workers — defined as under 18. Young workers must not work more than 8 hours a day, or 40 hours per week. As a minimum, they must also have:

• 30 minute break for more than 4.5 working hours

• 12 hours rest between working days

• 48 hours rest taken together each week

• No work between 10pm and 6am if not specified in their contract, or 11pm and 7am if their contract allows for work after 10pm. It’s against the law for anyone under 18 to work between midnight and 4am

Night workers

Defined as someone who works at least 3 hours at night — classified as 11pm to 6am — night workers must not work more than 8 hours in a 24-hour period. Employers must offer health assessments to prospective and current night workers, due to the potential risk on their health, safety, and wellbeing.

If an employer refuses to comply with The Working Time Regulations, the employee can make a claim to an employment tribunal or report the misconduct to the Health and Safety Executive (HSE) or their local authority.

The Right to Disconnect

To avoid burnout and promote a healthier work-life balance, many European countries have initiated a “right to disconnect” policy, whereby managers are prohibited from contacting their employees outside of their working hours.

In 2016, France passed the right to disconnect, prompting Italy to follow in 2017, Spain in 2018, and Ireland in 2021.

From 2022, 65,000 workers in Belgium have been given this right, though there’s an exception if “unforeseen circumstances [requiring] action cannot wait until the next working period.” The rule also ensures employees can’t be punished or treated negatively for not answering calls or messages outside standard working hours.

Similarly, Portugal passed the Portuguese Labor Code, stating “employers have the duty to refrain from contacting workers during their rest period, except in situations of force majeure.” If a manager breaches the policy, they could face severe fines.

Jack’s Law

It should be noted that there’s no specific law mandating time off for bereavement, but Jack’s Law in the UK entitles grieving parents to 2 weeks of paid statutory leave. This is applicable if a child (under 18 years) passes away, or is stillborn after 24 weeks of pregnancy.

Grieving a loss

As there’s no law for grieving the loss of a spouse, family member, or friend, it could be helpful for employers to include a bereavement policy, dictating the type and amount of leave employees will be entitled to in these difficult circumstances.

Regardless, employers should be compassionate and understanding to any reasonable requests for time off work in the face of a family death.

Bridging the gap between law and compassion

Employers need to know where they stand in terms of legal obligations, but there are many situations which fall outside mandatory regulations. In these cases, employers have a ‘duty of care’ to protect their employees’ wellbeing.

In an era where mental health is being prioritized, it’s becoming ever more important that employers are aware of how they treat their workers and the impact it can have on their mental wellbeing.

For instance, a new concept titled “unhappiness leave” has been circulating online. Falling under the umbrella of mental health and following idioms like “duvet day”, “unhappiness leave” is a term that refers to requesting time off work due to feeling unhappy or overwhelmed.

In China, a supermarket company has allowed its staff to claim up to 10 “unhappy days” in addition to their normal sick leave and holiday entitlement. It’s been inferred that this type of leave could help to create more transparent communication between employers and employees, aiding the wellbeing of overworked employees.