California Proposal Would Mandate Bereavement Leave

Editor's Note: Gov. Gavin Newsom signed this bill on Sept. 29.

A bipartisan bill appears likely to pass in California that would guarantee bereavement leave for workers, making the state only the third to mandate such time off.

The proposed law (AB 1949) would require employers in California to give eligible employees up to five days of bereavement leave after the death of a spouse, child, parent, sibling, grandparent, grandchild, domestic partner or parent-in-law. Other family relationships are not included.

The bill covers all public employers and private companies that employ five or more individuals in California. The time off must be completed within three months of the date of death, though the days of leave do not need to be consecutive. The bereavement leave can be unpaid; however, the bill would allow employees to use their paid leave, such as accrued vacation days or sick days. To be eligible, an employee must have worked for the employer for more than 30 days prior to the start of the leave. 

This year's version improves upon some of the criticisms of earlier versions and has bipartisan support. It also "seems like a humane thing to do, and one that will not unduly complicate for most employers," said Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego, Calif.

Millions of employees have lost a family member during the last two years because of the COVID-19 pandemic.

"Similar legislation was proposed in 2020, but never made it to the governor," said Stephanie Kierig, an attorney with Jackson Lewis in San Diego. "Perhaps the COVID-19 pandemic and the unfortunate consequences of the virus will have altered people's perspective on the issue of bereavement leave."

Oregon, Maryland and Pittsburgh have mandated bereavement leave in recent years. Ten states and the District of Columbia mandate paid family and medical leave, according to the National Conference of State Legislatures. Sixteen states and the District of Columbia require paid sick leave.

Steps For Employers

Many employers have policies that allow workers to take a few days off when a family member dies. The bill would formalize this benefit.

"As with any kind of leave entitlement, it is always a best practice to have a formalized policy that is applied uniformly," Kierig said.

Now would be an opportune time to examine a company's current policy and whether it is being executed properly.

"If they don't already have a bereavement-leave policy in place, employers and HR professionals should first consider whether they meet the requirements to be subject to the terms of [the bill]," Kierig advised. "They should also evaluate how a bereavement-leave policy would affect their operations and how such a policy should be implemented. Employers with existing bereavement-leave policies should review those policies to ensure they meet the requirements of [the bill] and be prepared to update or revise them as necessary to ensure compliance with the law."

If the bill passes and employers fail to comply, they would have to pay past and future lost income and benefits, emotional distress damages, and punitive damages, Kierig noted.

Under the bill, employers cannot discriminate or retaliate against workers who take bereavement leave. Employers may request that employees provide proof of death, such a death certificate, published obituary or written verification of services from a funeral home.

Employers usually don't challenge an employee's request for bereavement leave unless there are ongoing attendance problems with that individual, Kalt said.

Employers must maintain confidentiality regarding an employee's bereavement leave.

The relationships defined in the bill for bereavement leave align with the relationships included in the California Family Rights Act and the state's Family and Medical Leave Act, which provide time off to care for a sick family member.

This alignment is designed be helpful to employees who serve as a caregiver for a sick family member and then need time off work after that family member dies.

Bereavement leave would be considered separate from time off under the California Family Rights Act.