Bereavement leave polices present legal considerations for employers
State leave mandates today cover a wide range of reasons: sickness, birth/adoption, qualifying military exigencies, domestic violence, public health emergencies, jury duty and voting. And the list goes on. But when it comes to taking time off for the death of a loved one, relatively few states provide job protection, and no federal law is directly on point, other than what is available for federal employees.
This may come as a surprise. After all, most employees will face the death of a close family member at some point in their work careers, like I did when my dad died in 2018. Death is difficult. Mourning is often accompanied by time-consuming administrative and emotional tasks related to the funeral, sorting and distributing a lifetime of belongings, managing the termination of a lease or the sale of a home, probate and other details.
Many employers play a key role in helping employees through this process by providing paid bereavement leave and offering an Employee Assistance Program. In fact, Mercer’s Survey on Health and Benefit Strategies for 2024 found that paid leave for the loss of an immediate family member is provided nearly universally by large employers (those with 500 or more employees), and the median number of days provided is five.
Further, many are choosing to broaden their bereavement leave policies. Recognizing that people have close and meaningful relationships with extended family members or friends, over two-thirds of employers provide paid bereavement leave for these losses as well. A more recent employer trend is paid time off to grieve following a miscarriage or stillbirth. According to the survey, well over half provide paid leave for these reasons either through a separate leave policy or as part of the bereavement leave policy.
What follows is a summary of current law related to bereavement leave and employer considerations for a voluntary bereavement leave policy.
-
Employers with five or more employees must offer up to five days of unpaid leave to be used within three months of the death of a family member or a reproductive loss event. (Gov. Code §§ 12945.6 and 12945.7)
-
All employers must offer up to 48 hours of paid sick leave per year, which can be used after the death of a family member. (Rev. Stat. §§ 8-13.3-401 et seq.)
-
Employers with at least 50 employees must offer up to two weeks of unpaid leave to be used within 60 days of the death of a family member or a reproductive loss. If an employee suffers the death of two or more family members in a 12-month period, the allotment increases to six weeks. (820 ILCS 154)
-
Employers with 15 or more Maryland employees must allow employes to use “leave with pay” for bereavement upon the death of an immediate family member (child, parent, spouse). Leave with pay includes sick leave, vacation time, and compensatory time. (Lab. & Empl. Code § 3-802)
-
A budget law added a permitted use to the state’s existing earned sick and safe time law: arrangements for or attending funeral services or a memorial, or addressing financial or legal matters that arise after the death of a family member.
-
Employers with 25 or more employees must provide up to two weeks of unpaid leave for family member bereavement, to be used within 60 days of the date the employee receives notice of the death. If an employee suffers the death of two or more family members in a one-year period, the allotment increases to four weeks. Employees can use accrued sick or vacation leave for the bereavement period. The state’s sick time law generally requires employers with 10 or more Oregon employees to provide up to 40 hours of paid sick leave per year, which can be used for bereavement. (ORS § 659A.159)
-
Under the state’s paid family and medical leave law, all employers must offer up to seven days of paid leave for the death of a child for whom the employee could have taken bonding leave. Also, Tacoma’s paid sick leave ordinance includes bereavement as a reason. (Ch. 50A.05)
A Virginia bill was vetoed this year. Bills are currently pending in Massachusetts, New Jersey and Puerto Rico.
Employer considerations
Even if not required by law, many employers see bereavement leave as a valuable employee benefit. Employers should weigh these issues in drafting and/or reviewing a policy:
- Consider whether the family member definition, duration, time limits and documentation requirements are appropriate for your workforce. Deviations from a policy for a selected few may raise discrimination concerns based on alleged disparate treatment or impact. Also, New York law requires any bereavement policy to treat same-sex committed partners the same as a spouse.
- Allow for reduced schedule/intermittent leave where appropriate.
- Consider including reproductive losses (like miscarriage and abortion). Pregnancy status enjoys legal protections. The recently issued final Pregnant Workers Fairness Act regulations list bereavement leave as a potential reasonable accommodation.
- Realize that an employee’s bereavement could constitute a serious health condition under the Family and Medical Leave Act or disability under the Americans with Disabilities Act.
- Raise awareness of available resources, like a medical plan’s mental health coverage and/or an EAP.
Bottom line
A thoughtful bereavement policy is an opportunity for employers to help ease employees’ pain during a painful time of their lives.
