In September, California Governor Gavin Newsom signed a bill (AB-1949) that requires all employers with five or more employees to offer five days of bereavement leave, either paid or unpaid, and protect those employees’ jobs for when they return to work. In other words, most businesses in California are now required to provide bereavement leave.
But are there any other requirements that come with this law? What are the basics of this leave in the first place? We’ll go over all this and more, so keep reading.
What Exactly is Bereavement Leave?
Before we get into the specifics for California, let’s get a solid understanding of bereavement leave first. Bereavement leave refers to the time taken off by a worker when there is a death in their family. This time can range from a day to several weeks and usually happens within three months of the death.
Bereavement leave can be considered a job benefit, like paid time off or paid sick time. In many larger companies, it is an established policy that is outlined in staff manuals and managed by the human resources department.
It is less common with smaller businesses, especially if they don’t have a dedicated HR staff person and have not taken the time to write up how they want to handle bereavement. According to the Bureau of Labor Statistics, 76% of companies with more than 100 workers offer paid bereavement leave, while only 47% of those with less than 100 employees do.
What is the New Bereavement Leave Law in California?
Under the new California law:
- Businesses with five employees or more are required to allow their eligible employees to take up to five days of bereavement leave without fear of losing their job.
- Employees must have been employed by the business for at least 30 days to be covered.
- Leave can be given for the death of an immediate family member (see the next section).
- That leave must be completed within three months of the death, but it does not need to include consecutive days. So, for example, if an employee takes one day off for a funeral, and, two weeks later, needs another couple of days to help handle details related to the death, that would be allowed.
- The employer must maintain employee confidentiality regarding the leave.
- The leave does not have to be paid, but the employee must be free to use other accrued time, such as vacation leave, to allow them to receive pay for days they are out.
- The law does not apply to any employee who is covered by a collective bargaining agreement that already provides this kind of leave.
Who is Considered Immediate Family for Bereavement Leave in California?
The new California law protects employees who need to take bereavement leave for the loss of a:
- Spouse
- Child, including a biological, adopted or foster child, a stepchild, or a legal ward
- Parent (or parent-in-law), including a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who acted as a parent when the employee was a child
- Sibling, including anyone related by blood, adoption, or affinity through a common legal or biological parent
- Grandparent
- Grandchild
- Domestic partner
Any business, however, can expand upon this list.
Is Bereavement Leave the Same as Funeral Leave in California?
These terms are often used interchangeably by employers. In general, funeral leave is considered the time that you’d take off to attend a funeral, whether it is local or requires you to travel to another state. Funeral leave is often allowed for three to five days, and may or may not be paid time off.
Bereavement leave, as viewed by many employers, is somewhat more flexible and could include a range of activities–such as organizing a will, packing up a home or apartment and disposing of its contents, and finalizing the deceased person’s financial situation. Employers have to give employees five or more days off—although once again, whether it is paid or not is up to the employer (though employees can put their PTO toward it). It’s fairly typical of companies, however, to make bereavement leave a separate time off category that won’t reduce employees’ PTO.
An employer may also use the term “bereavement pay” when talking about the time taken off following a family death. That generally indicates that the time taken off, up to a stipulated number of days, will be paid at the employee’s usual rate of pay.
Can You Use FMLA for Bereavement Leave?
No, unfortunately, you can‘t use FMLA for bereavement leave.
The Family and Medical Leave Act (FMLA) is a federal labor law that states that employees must be given job-protected, unpaid leaves of absence of up to 12 weeks for qualified medical and family reasons.
In California, this protection is further affirmed by the state of California Family Rights Act, which reiterates the protections given at the federal level. Workers can use accrued vacation time, sick leave, or other compensatory time previously negotiated with the employer to pay for all or part of their time off. This time can be used to provide health care for a sick loved one, recover from a serious illness, or care for a newborn or newly adopted child.
The FMLA was created to help families thrive when parents are in the workforce. It was not meant to be used as bereavement leave, and this use is not sanctioned by state or federal law. In other words, if your loved one is suffering from a terminal illness and you need to be with them in the hospital, FMLA can cover you by providing you with unpaid time off that protects your job. But if that person dies, FMLA no longer applies. If that is the case, an employee would need to talk to their supervisor or HR administrator to switch their leave.
How Many Days of Unpaid Bereavement Leave Are allowed?
Employers in California are required to offer five days off, either paid or unpaid, for mourning the loss of a loved one. If it is unpaid, employees are allowed to charge the time to paid sick leave, vacation time, or other accrued time off.
Before AB-1949 was passed by the California legislature, there were many variations on what was offered to employees. Employees who work for the California government, for example, were given three paid days off for a loss. Now they are allowed two extra days (for a total of five), however, these extra days do not need to be paid. State employees can, however, use their sick leave toward those additional days.
Employees of Los Angeles County were allowed three paid days off for full-time employees, while temporary employees who completed 200 days of service received eight hours of bereavement leave. In San Francisco, meanwhile, city employees get up to five days if they are required to travel out of state for their bereavement. Now everyone has to fall in line with the new state policy of five days.
Developing a Bereavement Leave Policy
So let’s say you run a mid-sized plant nursery in Sacramento with seven employees, and you have realized that you need to develop a standard policy for all employees that explains your company’s bereavement leave rules and instructs them on the appropriate steps if they wish to take leave. What are some of the factors that you should include in your policy? Consider the following checklist:
- How long will the employee be allowed to stay out on leave (five days is the minimum, but you could offer more)?
- Will you allow employees to use the leave more than three months after a death?
- What family members are your team members allowed to take leave for? Does it include, for example, cousins or aunts and uncles, or just those just specified by the new law?
- Will the leave be paid or unpaid?
- Will you require your employees to show you proof of bereavement: an obituary, death certificate, or another document? The new law allows for this.
As you prepare a policy for your employees, also consider how this leave will impact you, the business owner. How will you track employee leave, for example, and what will your procedure be if that employee is an essential worker who is needed to keep processes running smoothly?
You may also want to consider running your policy by your law firm to receive legal advice on whether the steps you’ve taken are all within the scope of the law.
Having a Bereavement Policy is Good for Your Employees—and Your Business
Having a written bereavement policy is a good idea for any size business. Employees who need to take time off for a death will likely be stressed and grieving. If you’re able to sit down with them and work out the best way to manage their situation with your clearly stated policy in hand, you avoid making their plans harder for them to manage than is necessary.
With new legislation passed in California, there’s never been a better time to sit down and plan how you'll roll out this benefit. Why not make the effort and get that policy started today?
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