California bereavement leave is a complex subject. On top of that, losing a loved one is a very sensitive matter. Any employer should approach this issue with care and compassion.
Therefore, employers and HR managers need to be aware of any changes in related policies and laws to ensure the bereavement leave process goes smoothly.
In this article, we will break down the past and current bereavement leaves laws in California. We’ll answer all of your questions related to this type of leave and changes in California in 2023.
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What is Bereavement Leave?
A question many workers may ponder is “Can you have time off work for a death in the family?” Many employers offer this leave, although the Fair Labor Standards Act (FLSA) does not require it. It is known as bereavement leave grievance leave or compassionate leave.
Bereavement is the period of mourning after the death of a loved one. It is typical during this time for people to experience grief. In this case, it is common for employees to ask for time off work in order to grieve at home alone or with family. Not only this, but employees may have to deal with a whole host of tasks including funeral arrangements and other pressing post-death matters. Time taken away from work to deal with these matters is commonly known as bereavement time off.
As an employer, it’s important to know how to best support your employees during those difficult times.
Bereavement vs Funeral Leave
Some employers may differentiate between “funeral leave” and “bereavement leave.” The exact language will depend on the company’s policy. Employees should check their contract or employee handbook to see what applies to them.
- Funeral Leave is usually two or three days off. Employers expect that employees will use this time to attend a funeral. Some employees may be able to take funeral leave for someone who isn’t immediate family.
- Bereavement Leave is usually a week or two of time off. Workers use this time to make arrangements, attend a funeral, and mourn. Some employers might expect workers to use accrued sick time, floating holidays, or personal time off rather than offering this kind of leave.
In the eyes of the law, funeral leave would fall under the umbrella of bereavement.
Bereavement leave in California has been a long time coming. The first legislation mandating bereavement leave appeared (but did not pass) in 2007. Now, 15 years later, Assembly Bill 1949 has passed, ensuring leave to most California employees who have lost loved ones.
In 2007, Senator Corbett introduced a measure that would have provided all California employees with four days off for bereavement. Governor Schwarzenegger vetoed the measure, and in 2010, vetoed another that proposed three days of leave. Governor Brown vetoed a similar measure in 2011.
Other than California, very few states have bereavement leave laws in place. Oregon, Illinois and Maryland have laws in place that cover private employers.
Before AB 1949, private sector employers did not have to provide bereavement leave in CA, either paid or unpaid. If they wished to take time off to make funeral arrangements or mourn, they could use accrued time off or compensatory time. Although the law did not oblige employers to offer bereavement leave, some may have included bereavement in their company leave policy.
Public employees were entitled to up to three days of paid bereavement leave. California state employees had to provide documentation of bereavement leave, such as a death certificate or obituary. If the death was out of state, the employee could take two additional unpaid days off.
Bereavement Leave California: AB 1949
Despite the battle, bereavement leave became protected when Governor Newsom signed Assembly Bill 1949 at the end of September 2022. The bill created protects the leave under the California Family Rights Act (CFRA) and went into effect on January 1, 2023.
Qualifying employees, of private-sector employers with at least five employees and all public-sector employers, will be given five days of bereavement leave. Employers and HR teams alike should be aware of the requirements for qualifying employees.
Bereavement leave eligibility
There are a few requirements under AB 1949:
- The employee needs to have been employed for at least 30 days prior to the start of the leave. The leave needs to be for a qualifying family member.
- A qualifying member may be: a spouse, parent, child, sibling, grandparent, domestic partner, or parent-in-law.
- There is no limit for how many times an employee can take the leave as long as it is for a qualifying family member.
- The five days covered for qualifying employees do not need to be taken consecutively. However, the bereavement leave needs to be taken within three months of the date of death.
Employer takeaways under AB 1949
- To know whether the leave under AB 1949 is paid or unpaid depends solely on an employer’s current policy.
- Employers may require documentation for the employee’s bereavement leave. This could include: a published obituary, verification of death, death certificate, or memorial services documentation. If requested by the employer, documentation must be provided within 30 days of said leave.
- Confidentiality of employee and documentation must be maintained under AB 1949.
- Under AB 1949, employers cannot refuse to hire, discharge, demote, fine, suspend, expel, or discriminate against any person who exercises their right to bereavement leave or any person who provides testimony regarding their own bereavement leave or another person’s in an inquiry or proceeding related to rights guaranteed under AB 1949.
- If an employer does not already have a policy, the five days permitted under AB 1949 may be unpaid. However, employees can use accrued paid time off.
- An employer with an existing paid policy will continue to provide employees with those paid days. If the existing policy is less than five, any remaining days under AB 1949 will be unpaid. However, employees can use any accrued time off to cover remaining days that are unpaid.
- Employers who have an existing bereavement leave policy of less than five days will adopt the five day requirement under AB 1949 and can use any accrued time off to cover those
- If the employer’s existing leave policy provides for less five days of unpaid bereavement leave, the employee is entitled to at least five days of unpaid leave; however, the employee may use accrued paid leave otherwise available to the employee for the unpaid days.
The Family and Medical Leave Act (FMLA) is a federal law that guarantees workers around the country 12 weeks of unpaid time off. FMLA only covers businesses that are larger than 50 employees, and only applies to employees who have worked at least a year for their employer. If they qualify, employees can use this time off for:
- The birth and care of a newborn child or placement of an adopted or foster child.
- Caring for an immediate family member.
- Medical or intermittent leave if an employee is unable to work.
Can you apply FMLA for bereavement leave? Under the current law, an employee cannot use FMLA job-protected leave to attend a funeral or make arrangements for someone who has passed. Employees may receive time off to care for family members, but once the family member passes, employees technically no longer qualify for leave.
The California Family Rights Act (CFRA) mirrors FMLA, offering 12 weeks of unpaid leave to employees. It also stipulates that employees can receive up to six weeks of Family Temporary Disability Insurance (FTDI) over a 12-month period. As with FMLA, this time can only be used for parental leave or if the employee or a family member is ill.
Once your bereavement policy is in place, it is crucial to create a system for managing time off requests, PTO, and keeping track of employee leave. Employers need to track time off in order to make sure that they are in compliance with federal and local regulations. California already offers some of the most comprehensive unpaid and paid time off laws in the country. Employers in California must respect employees’ rights to time off.
Leave tracking software and PTO tracking software may help employers to stay on top of different kinds of leave, such as accrued sick leave and parental leave. Managers can create different categories of leave and employees can select which applies. This will make it easier for employees to keep the schedule balanced and workflow moving.