Bereavement Leave Bill Stalls in Congress

Allen Smith, J.D. By Allen Smith, J.D. July 13, 2017
Bereavement Leave Bill Stalls in Congress

​A U.S. bill to secure 12 weeks of unpaid bereavement leave for parents grieving the loss of a child is stalling in the Senate, where it has only Democratic support, though the bill, which would amend the Family and Medical Leave Act (FMLA), has some bipartisan backing in the House of Representatives.

"I'd like to see more movement in the Senate to make it more bipartisan," said one of the original constituents behind the bill's creation, Kelly Farley, an engineer in Chicago whose wife gave birth to two stillborn children, Katie in 2004 and Noah in 2006. The Sarah Grace-Farley-Kluger Act, or Parental Bereavement Act of 2017, has 13 co-sponsors in the Senate, led by original sponsor Sen. Jon Tester, D-Mont. In the House, it has 13 co-sponsors as well, but seven are Republicans and six are Democrats, Farley noted.

The loss of a child is "profoundly more difficult to deal with than dealing with any other type of grief," Farley said. "It's devastating. You can't comprehend it unless you've lived it. It brings you to your knees." He said he wanted to help other parents suffering a similar loss by securing "a few months to get back on their feet and start counseling to get their lives back together." Most companies offer three to five days for grieving, if that, he noted.

Grievers Bond in Common Cause

Farley's effort began in 2011 with Barry Kluger, whose daughter Erica died at 18 in a car crash in 2001. Farley interviewed thousands of grieving fathers for his book Grieving Dads: To the Brink and Back (self-published, 2012), which is how he met Kluger. In 2012, Matthew and Marissa Weippert started their own effort for the FMLA to be modified in honor of their daughter, Sarah Grace, who passed away from leukemia on Nov. 9, 2002, at the age of 12. The Weippert, Farley and Kluger legislative initiatives were combined in 2013, Kluger said. "Fast forward [and], by the end of the session in 2013, there were 40-plus Democrat sponsors [in the House], no Republicans and it would die in committee," said Kluger, who lives in Scottsdale, Ariz.

"In 2015, a local congressman named Paul Gosar here in Arizona met with me," he recalled. "I told him about our efforts and said there were no Republicans. He replied, 'You now have your first.' He was the first to break the deadlock. More trips to D.C. with Kelly Farley and we got some more Republicans, but it was heavily weighted for Democrats."


The bill would "take the current FMLA and just add loss of a child, up to [age] 18," Kluger noted. "We believe it was an oversight" not to include a child's death in the FMLA, he said, adding that "we and most of the psychiatric and social worker community believe grief is not a mental illness. It's a normal reaction to a life-altering event." And many employees have been reluctant to take time off to grieve without any FMLA coverage for the time off, he added.

[SHRM members-only toolkit: Coordinating Leaves of Absence]

The bill proposes unpaid leave, he emphasized. "We do not want to place a burden on employers. We just want the job to be held. We believe it's about compassion in the workplace but also good business." You have an employee making, say $60,000. You have invested and trained that employee, and they have been loyal. They lose a child. You give them three to five days. Their loss affects morale, not only theirs but colleagues'. You fire them. You now have to hire someone at $70,000, retrain them and you've just made a bad business decision."

Infrequent Tragedy

Farley said he's heard some criticize the bill, predicting it would put "undue stress on American businesses." But he said that "it's not like the death of a child happens that often. When it does, the employee may still be at work but mentally checked out. I'm not sure you'd want the employee at the office or driving a semi the first couple of months" after the death of a child.

A petition in favor of the bill has garnered more than 100,000 signatures. Some who have commented on the petition have said it would be nice if the bill also addressed grieving for others, such as for the loss of a spouse, "but our mission has been primarily the loss of a child. It's profoundly more difficult to deal with than dealing with any other type of grief," Farley said.

State Action, Federal Gridlock

A few states have enacted bereavement-leave laws. Oregon has a bereavement-leave law requiring up to two weeks off for the death of a family member if an employer has at least 25 employees. Oregon's law includes bereavement leave for the death of a biological child, adopted child, step child, foster child or child of a same-sex domestic partner. Illinois has a law requiring employers with 50 or more workers to grant up to 10 workdays off for the death of a child.

Farley has grown skeptical about the chances of amending the FMLA to add bereavement leave, giving its chances "50/50."


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