Can a Mississippi school district add three days of paid bereavement leave separate from sick or personal leave?

Plain-English summary

Claiborne County School District wanted to adopt a policy granting three paid days of bereavement leave per occurrence, not deducted from sick or personal leave, for deaths of parents, siblings, spouses, children, grandchildren, grandparents, mothers-in-law, or fathers-in-law. The district's attorney asked four questions about the legality of this policy.

The AG said no to the new-category approach. The 2019 amendment to Section 37-7-307 did not create a new bereavement leave category; it added an exception allowing personal leave to be taken on three normally restricted days (first and last day of school term, days adjacent to holidays).

Section 37-7-307(3)(a) gives licensed school employees a minimum of two paid personal leave days per year, but generally bars taking those days on the first day of the term, the last day of the term, or the days before/after holidays. Subsection (3)(b) lists four exceptions:

1. Immediate family member's military deployment
2. Employee with 10+ years of service or 30+ days of accrued leave (allows leave on day before or after holiday only)
3. Jury duty or witness summons
4. Death or funeral of an immediate family member (the "three bereavement days")

The bereavement-day language is part of subsection (b)(iv): "Personal leave may be taken on the first day of the school term, the last day of the school term, on a day previous to a holiday or a day after a holiday if, on the applicable day, an immediate family member of the employee dies or funeral services are held. Any day of the three (3) bereavement days may be used at the discretion of the teacher, and are not required to be taken in consecutive succession."

So the three bereavement days are:

• Existing personal leave days
• Available for use on three otherwise-restricted days
• Not separate or additional leave

For the family-member definition, the same subsection defines "immediate family member" as "spouse, parent, stepparent, child or stepchild, grandparent or sibling, including a stepbrother or stepsister." In-laws are not included.

Section 37-7-307(6)(d) lets school boards "enlarg[e], increas[e], or provid[e] greater sick or personal leave allowances than the minimum standards established by this section." But the 2004 Ready opinion held that this authority does not extend to creating new types of leave.

For Question 3 (maximum allowable personal and sick leave), the AG noted that Sections 25-3-93 and 25-3-95 set accrual rates based on years of continuous service. The numbers vary by tenure, so the AG could not give a single blanket figure. The AG referred the district to the State Auditor's Technical Assistance Division and the Mississippi Department of Education.

For Question 4 (what the three bereavement days are), the AG re-explained: they are exceptions to restrictions, not additional days.

What this means for you

For Mississippi school district attorneys

Bereavement-leave policies must work within the existing leave framework. Two valid approaches:

1. Allow employees to use existing personal or sick leave for bereavement (this is already the default for non-restricted days, plus the Section 37-7-307(3)(b)(iv) exception covers restricted days for immediate-family deaths)

2. Increase the personal-leave allowance under Section 37-7-307(6)(d), giving employees more total days they can use for any purpose, including bereavement

Not valid: creating a separate bereavement-leave category that does not draw from sick or personal leave allowances.

The "immediate family member" definition in Section 37-7-307(3)(b)(iv) controls for the day-restriction-exception purpose. Districts cannot expand it to include in-laws via local policy. Districts also cannot exclude stepfamily members.

For school board members

When considering bereavement-leave proposals, the legal options:

• Adjust the sick or personal leave totals upward (within Sections 25-3-93 and 25-3-95 limits)
• Adjust the use rules within existing leave categories
• Adopt funeral-leave practices that fit within sick or personal leave

The local policy cannot create a new leave category. Even well-intentioned bereavement policies fail if structured as separate from sick/personal leave.

For school human resources officers

When employees ask for bereavement leave for in-laws or family members not within the immediate-family definition (e.g., aunts, uncles), they can use personal or sick leave (subject to the day-of-term restrictions and exceptions). They do not have a separate bereavement-leave entitlement under the statute.

For in-laws specifically: the immediate-family definition in 37-7-307(3)(b)(iv) does not include in-laws. Personal leave on the first/last day of term or days adjacent to holidays cannot be taken for an in-law's death (under that exception), but can be taken on regular days.

For teachers and school employees

Under the opinion, the "three bereavement days" in Section 37-7-307(3)(b)(iv) "are not additional days of leave or a new category of leave." They are an exception that lets an employee take existing personal leave on the first or last day of the term, or a day before or after a holiday, when an immediate family member dies or funeral services are held.

For state education administrators

The opinion clarifies the 2019 amendment: it "does not create a specific type of leave for bereavement but instead provides an exception to the rule disallowing personal leave on specific days during the school year." It also notes that the only mention of bereavement days in the statutes is in subsection (3)(b)(iv).

Common questions

Q: Can a Mississippi school district create three paid bereavement days separate from sick and personal leave?
A: No. The opinion holds the school board "may not create a new category of bereavement leave," because the 2019 amendment "does not create a specific type of leave for bereavement but instead provides an exception to the rule disallowing personal leave on specific days."

Q: What are the "three bereavement days," then?
A: Per the opinion, they are "exceptions to the statutorily imposed restrictions on the three types of days of the school term on which personal leave may not be taken," not additional days. They let an employee use personal leave on the first or last day of the term, or a day before or after a holiday, when an immediate family member dies.

Q: Can the bereavement days be taken non-consecutively?
A: Yes. The statute, as quoted in the opinion, says "[a]ny day of the three (3) bereavement days may be used at the discretion of the teacher, and are not required to be taken in consecutive succession."

Q: Does the bereavement exception apply when an in-law dies?
A: No. The opinion notes the immediate-family definition in Section 37-7-307(3)(b)(iv) is "spouse, parent, stepparent, child or stepchild, grandparent or sibling, including a stepbrother or stepsister," and that "[i]n-laws are not included."

Q: Can a school board add bereavement days by increasing leave allowances?
A: The opinion notes that while Section 37-7-307(6)(d) lets boards enlarge or increase "sick or personal leave allowances," the Ready opinion (2004) held that authority "does not grant any authority to local school districts to create any additional types of leave."

Q: What is the maximum number of personal and sick days a district can grant?
A: The opinion says it cannot give a single figure: the maximum "is calculated based upon an individual's years of continuous service as specified in Sections 25-3-93 and 25-3-95," and it refers the district to the State Auditor's Technical Assistance Division or the Mississippi Department of Education.

Background and statutory framework

Section 37-7-307 sets the personal-leave policy for licensed school employees. Under subsection (3)(a), each licensed employee is credited with a minimum of two paid personal-leave days per year, but such leave generally "shall not be taken on the first day of the school term, the last day of the school term, on a day previous to a holiday or a day after a holiday." Subsection (2)(a) credits a minimum of seven sick-leave days for physical disability or illness.

Subsection (3)(b) lists four exceptions allowing personal leave on those otherwise-restricted days: (i) an immediate family member's military deployment; (ii) an employee with ten years' experience or thirty days of accumulated leave (days before or after a holiday); (iii) jury duty or a witness summons; and (iv) the death or funeral of an immediate family member, the "three bereavement days." The opinion quotes the statute's definition of immediate family member and notes in-laws are excluded.

The opinion reads the plain language of the statute to mean the 2019 amendment "did not create a new category of leave but added another exception." It relies on the Ready opinion (Mar. 26, 2004), which held that the board's authority under Section 37-7-307(6)(d) to enlarge leave allowances "does not grant any authority to local school districts to create any additional types of leave." On the maximum-days question, it points to the accrual rates tied to years of continuous service in Sections 25-3-93 and 25-3-95 and declines to state a blanket figure.

Citations and references

Statutes:

• Miss. Code Ann. § 25-3-93, personal leave accrual rates
• Miss. Code Ann. § 25-3-95, major medical (sick) leave accrual rates
• Miss. Code Ann. § 37-7-307, school employee leave framework
• Miss. Code Ann. § 37-7-307(3)(b)(iv), three bereavement days exception
• Miss. Code Ann. § 37-7-307(6)(d), school board authority to enlarge or increase leave

Prior AG opinion cited:

• MS AG Op., Ready (Mar. 26, 2004), school board authority to enlarge leave does not extend to creating new types

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/03/D.Turner-February-24-2022-School-District-Employee-Bereavement-Leave.pdf

Original opinion text

February 24, 2022

Dorian E. Turner, Esq.
Board Attorney, Claiborne County School District
1880 Lakeland Drive, Suite D
Jackson, Mississippi 39216

Re: School District Employee Bereavement Leave

Dear Ms. Turner:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, the Board of Education of the Claiborne County School District ("the District") wishes to adopt a policy that would grant three days of bereavement leave to employees in the event of the death of any of the following family members: parent, sibling, spouse, child, grandchild, grandparent, mother-in-law, or father-in-law. The three-day bereavement leave would be granted for each occurrence of the death of a family member and would be in addition to personal leave and sick leave granted to District employees. In light of Mississippi Code Annotated Section 37-7-307(3)(b)(iv), which provides for three "bereavement days" that can be taken on days otherwise unavailable for leave during the school year, you present several questions about the District's ability to craft a bereavement policy.

Questions Presented

1. May the District's school board adopt a policy providing its employees with three paid bereavement days, per occurrence, for the death of certain family members, with such leave not being applied against the employee's accrued sick, vacation, or personal leave?

2. If the answer to the first question is yes, may the family members for whose death bereavement leave may be taken include family members not contained in the definition of "immediate family member" in Section 37-7-307(3)(b)(iv), e.g., mother-in-law and father-in-law, and exclude family members included in Section 37-7-307(b)(3)(iv), e.g., stepparent, stepchild, stepbrother and stepsister?

3. If the answer to the first question is no, what is the maximum number of combined personal and sick leave days that the school board can grant its employees without exceeding Sections 25-3-93 and 25-3-95?

4. Finally, what are the three bereavement days referred to in Section 37-7-307(3)(b)(iv), and how are these to be applied and/or granted to school employees?

Brief Response

1. No. The District's school board may not create a new category of bereavement leave. The statute as amended in 2019 does not create a specific type of leave for bereavement but instead provides an exception to the rule disallowing personal leave on specific days during the school year.

2. Because the answer to Question 1 is no, we need not address Question 2.

3. The maximum number of allowable personal leave days and sick days is calculated based upon an individual's years of continuous service as specified in Sections 25-3-93 and 25-3-95.

4. The three bereavement days referred to in Section 37-7-307(3)(b)(iv) are not additional days of leave or a new category of leave. Instead, they are exceptions to the statutorily imposed restrictions on the three types of days of the school term on which personal leave may not be taken.

Applicable Law and Discussion

Mississippi Code Annotated Section 37-7-307 sets forth the personal leave policy for licensed school employees, and states, in pertinent part, the following:

(3)(a) Beginning with the school year 1983-1984, each licensed employee at the beginning of each school year shall be credited with a minimum personal leave allowance, with pay, of two (2) days for absences caused by personal reasons during that school year. . . . Except as otherwise provided in paragraph (b) of this subsection, such personal leave shall not be taken on the first day of the school term, the last day of the school term, on a day previous to a holiday or a day after a holiday.

Subsection (3)(b) provides an exception to the restriction of subsection (a), and lists four instances where personal leave may be taken on the first or last day of the school term and/or on a day previous to or right after a holiday:

(i) Personal leave may be taken on the first day of the school term, the last day of the school term, on a day previous to a holiday or a day after a holiday if, on the applicable day, an immediate family member of the employee is being deployed for military service.

(ii) Personal leave may be taken on a day previous to a holiday or a day after a holiday if an employee of a school district has either a minimum of ten (10) years' experience as an employee of that school district or a minimum of thirty (30) days of unused accumulated leave that has been earned while employed in that school district.

(iii) Personal leave may be taken on the first day of the school term, the last day of the school term, on a day previous to a holiday or a day after a holiday if, on the applicable day, the employee has been summoned to appear for jury duty or as a witness in court.

(iv) Personal leave may be taken on the first day of the school term, the last day of the school term, on a day previous to a holiday or a day after a holiday if, on the applicable day, an immediate family member of the employee dies or funeral services are held. Any day of the three (3) bereavement days may be used at the discretion of the teacher, and are not required to be taken in consecutive succession.

Miss. Code Ann. § 37-7-307(3)(b). For purposes of that specific subsection, immediate family member is defined as "spouse, parent, stepparent, child or stepchild, grandparent or sibling, including a stepbrother or stepsister." Id. In-laws are not included in the family member designation.

The only mention of bereavement days is in the above-quoted section. There is nothing else in the statutes regarding bereavement leave. As evidenced by the plain language of the statute, the legislature did not create a new category of leave but added another exception to the restriction on taking personal leave on the first day of the school term, the last day of the school term, or the day immediately before or after a school holiday. While Section 37-7-307(6)(d) does authorize school boards to enlarge, increase, or provide "greater sick or personal leave allowances than the minimum standards established by this section," this office previously has opined that the statute "does not grant any authority to local school districts to create any additional types of leave." MS AG Op., Ready at *2 (Mar. 26, 2004). Therefore, in response to your first question, the District's school board may not adopt a policy providing three paid days of bereavement leave for each occurrence of the death of an employee's family member with such leave not being applied against existing sick or personal leave. Because we have answered this question in the negative, we need not address your second question, although on the face of the statute, it is plain that in-laws are not considered family members for purposes of this section.

Your third question asks about the maximum number of combined sick and personal days a school board may grant its employees without exceeding that allowed by Sections 25-3-93 and 25-3-95. As an initial matter, Section 37-7-307(3)(a) establishes two days as the minimum number of days credited to licensed school employees for personal leave during the school year. Section 37-7-307(2)(a) establishes that each licensed employee and teacher's assistant be credited with a minimum of seven days of sick leave for physical disability or illness. Local school boards are also given the authority:

to adopt rules and regulations which will reasonably aid to implement the policy of sick and personal leave, including, but not limited to, rules and regulations . . . [e]nlarging, increasing or providing greater sick or personal leave allowances than the minimum standards established by this section in the discretion of the school board of each school district.

Miss. Code Ann. § 37-7-307(6)(a), (d).

Section 37-7-307(9) provides, in part:

…Unused vacation or personal leave accumulated by licensed employees in excess of the maximum five (5) days which may be carried over from one year to the next may be converted to sick leave. The annual conversion of unused vacation or personal leave to sick days for licensed or unlicensed employees shall not exceed the allowable number of personal leave days as provided in Section 25-3-93. The annual total number of converted unused vacation and/or personal days added to the annual unused sick days for any employee shall not exceed the combined allowable number of days per year provided in Sections 25-3-93 and 25-3-95. Local school board policies that provide for vacation, personal and sick leave for employees shall not exceed the provisions for leave as provided in Sections 25-3-93 and 25-3-95….

(Emphasis added.)

Section 25-3-93(1) and 25-3-95 provide accrual rates for personal leave and major medical leave based upon an employee's years of continuous service. Because the maximum number of personal and sick leave days a district could grant varies depending upon an employee's years of continuous service, we are unable to pronounce a blanket maximum number of days applicable to all districts. For further guidance on this question, we suggest that you contact the State Auditor's Technical Assistance Division or the Mississippi Department of Education.

In response to your fourth question, the three bereavement days referred to in Section 37-7-307(3)(b)(iv) are not additional days of leave or a new category of leave. Instead, they are exceptions to the statutorily imposed restrictions on the three types of days of the school term on which personal leave may not be taken.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Misty Monroe
Misty Monroe
Special Assistant Attorney General