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Though rarely discussed, bereavement after the loss of a
loved one is a fact of life. What is out of sight tends to be out of mind,
meaning it is rare for the topic of bereavement to be discussed in social circles
or the mainstream media.
There is a common misconception that employees are not legally entitled to a specific
amount of time away from work after a loved one dies. In reality, required
bereavement leave is written into California law.
Taking Bereavement Leave After a Family Member’s Passing
The loss of a loved one is an important life event that must
be acknowledged by employers. If you live in California and lose a family
member, bring it to the attention of your employer. You are legally entitled to
bereavement leave, meaning a period of mourning following the loss of a family
member.
Your bereavement period is a time for grieving. However, the
length of time it takes for you to overcome the loss of a family member might
be quite different from the length of time it takes for another person to do
the same. What matters most is that your employer is aware of the death in the
family and provides the legally mandated period of time for bereavement leave
from work.
Aside from grieving, bereavement leave is also used for
preparing for and attending a funeral as well as addressing additional matters
related to the passing of your loved one.
The Letter of the Law
Though there are no laws at the federal level that mandate
employers provide bereavement leave to employees, you are empowered to take
time away from your job to mourn. However, the time spent away from work might
not be paid leave as you might have exhausted your personal time off, sick
days, vacation, and other opportunities for paid time away from your post.
Moreover, the specifics of your employer’s bereavement leave policy also
determine whether the time off is paid.
We would be remiss not to point out that the federal
government is legally empowered to require that employers at the federal level,
including contractors, provide bereavement leave to employees after the death
of a loved one.
California and four other states have laws on the books that
mandate employers to pay bereavement leave. Aside from California, Washington,
Oregon, Maryland, and Illinois, the rest of the nation does not require employers to offer
bereavement leave.
Payment During Bereavement Leave
The little-known truth is that employers who permit time
away from work for bereavement are not legally required to financially
compensate employees for that time. However, there is a caveat in that
employment agreements or collective bargaining agreements pertaining to union
members might specifically state that employers must pay employees who are away
on bereavement.
Moreover, there is the potential for private employers to
create policies that state employees are to be provided with paid bereavement leave. Some businesses
provide paid bereavement leave as a means of rewarding hardworking employees
for their contributions, heightening retention rate, and recruiting efforts all
the more.
The benefits specific to your bereavement leave are
partially dependent on your unique employment classification. As long as the
unique bereavement leave benefits for each classification do not discriminate
against protected classes, such compensation on a classification basis will
hold strong against potential legal challenges.
Salaried, full-time employees tend to receive more paid
bereavement time than hourly, part-time, and non-exempt employees as their
classification ranks higher on the organizational employment totem pole.
The Applicability of Bereavement Leave
Employees often ask whether the loss of a grandparent,
niece, aunt, or uncle allows for bereavement leave. California and four other
states require private companies to provide leave for mourning yet federal and
other state laws have no such requirement. Therefore, employers are empowered
to decide the specific family member deaths that allow for permitted time away
from work as detailed in each’s respective bereavement policy.
More often than not, loved ones and immediate family members
commonly listed in private employer bereavement leave policies include:
·
Spouses
·
Parents (including step, in-law, foster, and
adoptive parents)
·
Grandparents
·
Children
·
Domestic partners
In regard to the overarching category of children, most
employers provide bereavement leave for biological children as well as the
following:
·
Grandchildren
·
Children of a domestic partner who is of the
same gender
·
Foster children
·
Stepchildren
·
Adopted children
Private employers are less likely to provide bereavement
leave after the death of a sibling, uncle, aunt, nephew, niece, roommate, or
friend.
How To Plan for Bereavement Leave Outside of California
Bereavement time for planning and attending a funeral and
mourning is often taken from sick time, personal time, or vacation time. Though
such leave is voluntary, it is almost always granted, even in states outside of
California, simply because the loss of a loved one is a significant life event.
If you do not live in California or one of the other four states that mandate
private employers to give time off from work for bereavement, check your
employee handbook, manual, or the language written in workplace policies to
learn more about the company’s stance on bereavement leave.
If the employer has a specific practice or policy detailing
the time allotted for bereavement, courts and government agencies almost always
mandate that the employer honor the terms stated in the practice or policy.
Moreover, if you are a member of a union and collective bargaining agreements
state employees are to be provided with bereavement leave, your employer must
honor the language of that agreement.
Let’s shift our attention to the nuances of a law recently
passed in California that shapes the manner in which employees take time off
from work to grieve after losing a loved one.
An Inside Look at California’s AB 1949
California residents should be aware that Governor Gavin
Newsom signed AB 1949 into law in the fall of 2022. The purpose of this law is
to protect employee leave for bereavement through a formal state government
code. Fast forward to the first day of 2023 and the law officially made it
illegal for employers to refuse to provide eligible employees with the
opportunity to leave work for five days to mourn the loss of a loved one.
AB 1949 is applicable to organizations with five or more
employees. Employees in the state of California should be aware that the five
days of leave for mourning are provided through the new law. However, the five
days away from work provided by AB 1949 are distinct from the time off from
work allowed by the CFRA. CFRA is an acronym for California Family Rights Act
that serves as another opportunity for employee-protected leave.
Workers in the state of California are eligible for leave
following the loss of a loved one if employed with the same organization for a
full 30 days before the start of the bereavement leave period. However, the
deaths of only certain loved ones trigger the opportunity to leave for
bereavement.
AB 1949 is applicable for the death of qualifying family
members, including the following:
·
Spouses
·
Children
·
Parents
·
Grandparents
·
Siblings
·
Grandchildren
·
Parents-in-law
·
Domestic partners
AB 1949 paves a path for employees to leave work for five
days after the death of the family members listed above without capping the total number of bereavement leaves across one’s
period of employment.
Mind the Subtleties of AB 1949
If you have lost a loved one or suspect one of your family
members might pass away in the near future, you should be aware that AB 1949
allows you to take your five days off intermittently
as opposed to consecutively. The
leave must be completed within three months of the date that the family member
dies. However, the issue of payment for the five days taken off hinges on the
employer’s specific bereavement leave policy.
California employees should be aware that employers have the
right to request verification that the family member in question actually
passed away. Examples of documentation that prove the death occurred include
the following:
·
A published obituary
·
A death certificate
·
Written verification
Written verification takes the form of the following:
·
Mortuary memorial services
·
Death or burial from the funeral home
·
Crematorium
·
Burial society
·
Government
·
Religious organization
If such documentation is required by an employer, it must be
submitted within 30 days of the initial day of leave. The documentation
provided to prove the death of a loved one must remain confidential in
accordance with the law. Furthermore, your identity as a mourner who lost a
loved one is also to be kept confidential by your employer.
Schedule Your Free Consultation Today
For help, contact Gomez Trial Lawyers today for a free
consultation by calling 866-TRIAL-LAW (866-874-2552) or by contacting
us online.
