FMLA Bill Would Require Child Bereavement Leave

Few laws currently mandate bereavement leave, but that may change

By Allen Smith, J.D. March 24, 2017

A child's death should trigger the right to Family and Medical Leave Act (FMLA) time off, according to a bipartisan group of congressional members who introduced a bill to amend the act.

Since 2012, Matthew and Marissa Weippert, chairman of the board of directors and director of the Sarah Grace Foundation for Children with Cancer, respectively, have been calling for the FMLA to be modified. Their daughter, Sarah Grace, passed away from leukemia on Nov. 9, 2002, at the age of 12.

"Sarah was buried on a Wednesday, and I returned to work the following Monday, because with Sarah gone I no longer felt comfortable asking my employer for more time off from work," Matthew Weippert said on the foundation website. "Returning to a 'normal' routine so quickly was devastating physically and emotionally, and the scars from this experience linger to this day."

Reps. Paul Gosar, R-Ariz., Don Beyer, D-Va., Barbara Comstock, R-Va., Martha McSally, R-Ariz., Brad Schneider, D-Ill., and Thomas Suozzi, D-N.Y., introduced the bill (H.R. 1560) March 16, and it was referred to the House Committee on Education and the Workforce. It would allow a grieving parent up to 12 weeks off from work to cope with the loss of a child.

Sen. Jon Tester, D-Mont., introduced a companion bill (S. 528) in the Senate March 6, which was referred to the Senate Committee on Health, Education, Labor and Pensions.

The FMLA legislation follows on the heels of Facebook Chief Operating Officer Sheryl Sandberg's February announcement that the company would provide 20 days of bereavement leave for the death of an immediate family member and 10 days for an extended family member. In Sandberg's announcement, which was partly in response to her husband's death in 2015, she said, "Only 60 percent of private-sector workers in the United States get paid time off after the death of a loved one and usually just a few days."

Few Legal Requirements

"Twenty days of paid leave is generous," noted Sonya Rosenberg, an attorney with Neal Gerber & Eisenberg in Chicago. She said that there are few laws requiring bereavement leave. 

Oregon has a bereavement leave statute requiring up to two weeks off if an employer has at least 25 employees. Illinois has a Child Bereavement Leave Act requiring employers with 50 or more employees to grant up to 10 workdays off for the death of a child.

While bereavement leave is not generally covered by the FMLA, the law mandates leave to address issues that arise when an employee's covered family member (spouse, son, daughter or parent) dies on active military duty, pointed out Robert Horton, an attorney with Bass, Berry & Sims in Nashville, Tenn.

Employers also should be aware that an employee may become depressed during a relative's illness or following a relative's death, said Sarah Riskin, an attorney with Nilan Johnson Lewis in Minneapolis. "Depression could qualify as a disability under the ADA [Americans with Disabilities Act], so employers will want to be cautious about" disciplining or discharging employees who take time off because they're depressed by a relative's death, she cautioned.

[SHRM members-only toolkit: Managing Family and Medical Leave]

While laws specifically requiring bereavement leave are uncommon, Rosenberg added that she wouldn't be surprised if legislators start introducing more bereavement-leave bills.

Extra Leave

Marjory Robertson, assistant vice president and senior counsel with Sun Life Financial (U.S.) Services Company in Wellesley Hills, Mass., said Sun Life offers employees up to three days of paid time off after the death of an immediate relative. FMLA leave is, by contrast, unpaid. Sun Life managers can extend the amount of paid bereavement time beyond three days and may allow workers to use bereavement time after the death of someone other than an immediate relative.

Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C., recommended providing extra leave, in addition to what a policy provides for, based on a sliding scale that takes into account the distance that the employee has to travel to handle a death, how directly he or she is involved in the arrangements and the relationship that the employee had with the deceased.

Flexible Policies

Shea also said employers should treat bereaved employees in same-sex relationships the same way they would manage bereaved employees in opposite-sex relationships.

"It's a good idea not to be too rigid about the familial relationships that qualify for bereavement leave," Shea said. "In some cases, the death of a dear friend or a distant relative might be more traumatic to the employee than the death of an immediate family member. Employers should be flexible enough to take these special situations into account."

But employers should have some way to handle abuse of policies. "I would not do it routinely, but if an employer has reason to question an employee's claim of bereavement, it should require some documentation of the relationship and the death before granting the leave," she said.


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