How much leave to offer and whom to offer it to remains a policy gap. Employees who need time away from work to grieve and to cope with the death of a loved one have no legal right to take leave, with narrow exceptions in California, Illinois, Maryland, Oregon, and Washington. Bereavement is not an acceptable use of unpaid leave under the Family and Medical Leave Act, despite recent efforts to add it to the law.
Many employers offer bereavement leave; however, the leave is often only a few days, which is not sufficient for most employees coping with a death. Bereavement can have broad and long-lasting effects on an employee’s health and well-being, with substantial impacts on productivity at work. Allowing employees adequate time to grieve their loss has benefits for both the employee and the employer. Bereavement policies can be structured in a variety of ways, and the size of an organization is likely to impact the type of policy that can be implemented.
**Hover over the states to learn more about specific state laws and legislation related to bereavement leave.
Two separate pieces of legislation related to providing bereavement leave for employees are currently filed for introduction in the Massachusetts state legislature. Senate Draft 2340, sponsored by Senator Michael Barret (D), and House Draft 2207, sponsored by Representative Sean Garballey (D), look to add bereavement leave to existing Massachusetts FMLA laws, while House Draft 274, sponsored by Christopher Worrell (D) and Senate Draft 1072 sponsored by Liz Miranda (D) would require employers who employ more than 10 employees to provide up to 10 days of unpaid bereavement leave.
Senate Draft 2340 and House Draft 2207
These bills propose to add bereavement leave to existing Massachusetts Family and Medical Leave laws. The bills would provide that family leave is available to any covered individual to cope with the death of a family member by attending the funeral, making arrangements necessitated by the death, or grieving the death of a family member. Employees would be entitled to a total of 8 weeks of family leave for bereavement purposes upon the death of each family member within a benefit year. Employees would be entitled to a weekly benefit during two of the 8 weeks of leave. This leave would be permitted to be taken intermittently or on a reduced leave schedule by the employee.
House Draft 274 and Senate Draft 1072
This bill requires employers to permit employees to take bereavement leave following the death of a family member for up to 10 business days within any 12-month period to make arrangements, attend the funeral, or grieve the death of a family member. The leave would be required to be taken within 30 days of the date of the death of a family member and would not be required to be paid leave. The bill also does not require employers who employ fewer than 10 employees to implement bereavement leave policies.
There are a handful of bills active in the New Jersey state legislature related to providing bereavement leave for employees. Most of the bills were introduced in 2022, and they all currently remain in committee.
Assembly Bill 5084
Introduced on January 19, 2023, by Representative Shanique Speight (D) expands the family leave provided under the New Jersey FMLA to cover leave to grieve the loss of a child due to the death of the child, miscarriage, stillbirth, or termination of a pregnancy for medical reasons. Leave would also be covered for employees who experience an unsuccessful adoption or unsuccessful fertility treatment.
The bill also amends the Temporary Disability Benefits Law to include disability leave benefits for the purpose of bereavement for the loss of a child. Leave would be limited to not more than 21 days immediately following the loss for a circumstance for which the employee would not be otherwise eligible and no more than seven days related to a circumstance for which the employee would be otherwise eligible for disability or family leave benefits.
Assembly Bill 4695
Speight also introduced Assembly bill 4695 on October 3, 2022. This bill expands on the provisions of 5084 above to amend FMLA laws, Temporary Disability Insurance, and also earned sick leave regulations. The bill looks to provide paid leave for covered employees who experience pregnancy loss, unsuccessful assisted reproductive technology procedures, failed adoption or surrogacy arrangement, or any other event impacting pregnancy or fertility.
The bill also permits up to three working days of bereavement leave for an employee who experiences the death of a family member or for pregnancy loss. Under the bill, employees would be permitted to use earned sick leave, family leave benefits, or temporary disability benefits and be able to choose the order in which leaves are taken. The bill would also expand coverage of the state’s FMLA laws to include employees of companies employing less than 30 employees from requiring reinstatement after leave.
Assembly Bill 4985
Introduced by Representative Sadaf Jaffer (D) on December 15, 2022, this bill proposes to amend the existing Family Leave Act to permit employees to take leave following the death of a family member or the miscarriage or stillbirth of a child. Under the bill, employees would be eligible to use their 12 weeks of family leave for bereavement purposes, but employers would be permitted to require an employee to return to work by providing a notification to the employee that they must return to work within 10 working days.
Senate Bill 2298 and Assembly Bill 3373
These bills, introduced by Senator Richard Codey (D) and Assembly Member Beth Sawyer (R) in March of 2022, provide that an employee is permitted to take family leave under New Jersey FMLA to grieve the loss of a child due to miscarriage or stillbirth. Employees would also be permitted to take family temporary disability leave under the Temporary Disability Benefits Law to bereave the loss of a child due to miscarriage or stillbirth. This would be limited to individuals who are the biological parents of a child or the domestic partner or civil union partner of the individual.
In the fall of 2021, Maryland amended its existing Flexible Leave Act to permit employees to use paid leave for bereavement purposes following the death of an immediate family member. The MFLA requires employers with 15 or more employees to permit employees to use accrued paid leave for bereavement purposes.
Under the law, “immediate family member” is defined to mean a child, spouse, or parent. “Parent” includes stepparents, and “child” only includes a child who is under the age of 18 or over 18 and incapable of self-care due to a mental or physical disability.
This law is different in that it simply extends the right to use existing accrued paid leave for bereavement purposes. The law does not mandate employers to provide any specific unpaid bereavement leave; it only permits eligible employees to use accrued paid leave for bereavement of an immediate family member.
House bill 66 was introduced in the Vermont state legislature on January 18, 2023, by Democratic Representative Emilie Kornheiser. This bill is wide-ranging in its scope as it proposes to create a Family and Medical Leave Insurance Program and looks to provide paid leave for reasons related to domestic and sexual violence as well as bereavement. The bill defines “bereavement leave” to mean a leave of absence from employment or self-employment by an individual due to the death of the individual’s family member that occurs not more than one year after the death. This includes leave taken in relation to settling the family member’s estate. Employees would be permitted to use up to two out of the 12 weeks of available benefits for family and medical leave during the year for bereavement leave.
The bill proposes to cover any employee who has received payments from an employer for which the employer is required to withhold Vermont income tax. The paid leave program is financed by a proposed 0.58% payroll tax split between the employer and employee and a $20 million appropriation from the state.
Vermont has passed bills attempting to implement a universal paid family leave program twice in recent years. In 2020, House bill 107 made it to the governor’s desk before being vetoed, but this is the first time a proposed paid family leave bill has included bereavement leave. The governor has stated that he is strongly opposed to implementing a program that is funded through an additional payroll tax and has already rolled out a plan to implement a voluntary plan funded through a private insurer. House bill 66 has received a lot of democratic support in the Vermont legislature and currently sits in the House Committee on General and Housing.
On September 29, 2022, California became the most recent state to enact a statewide bereavement leave policy. This new law requires employers with five or more employees to allow employees to take up to five days of bereavement leave upon the death of a family member. Unlike the laws above, the five days of bereavement leave is provided as an additional form of protected leave separate from the 12 weeks of permitted leave provided under the California Family Rights Act.
Employees are eligible if they have been employed for at least 30 days prior to the leave. Employees are not required to take the five days consecutively, but the leave must be completed within three months of the date of the death. This law also does not limit the amount of bereavement leave that can be taken in a calendar year. Instead, employees are permitted to take up to five days of bereavement leave per covered family member, including a spouse; child; parent; sibling; grandparent; grandchild; domestic partner; or parent-in-law.
The law also requires that bereavement leave is taken pursuant to an employer’s existing policies but does not require the five days of bereavement leave to be paid leave. Employees are permitted to use any accrued paid leave during the course of their bereavement leave. California’s law also does not apply to employees covered by a valid collective bargaining agreement under certain conditions.
The Oregon Family Leave Act covers bereavement leave. Under OFLA, employers with 25 or more employees must provide bereavement leave to eligible employees. Employees are eligible if they have worked for the employer for 180 days or more and worked an average of 25 or more hours per week for the 180 days prior to the bereavement leave.
Under the law, bereavement leave is defined as leave taken to deal with the death of a family member by attending the funeral, making arrangements, or grieving. Bereavement leave is provided for up to two weeks per death and has to take place within 60 days from the death.
Employers are not required to pay employees for bereavement leave, but employees are permitted to use paid leave they have accrued for bereavement purposes, and in some cases, employers can require the employee to use their accrued paid leave.
In the summer of 2022, Washington amended its Paid Family and Medical Leave Act (PFML) to make paid leave available for bereavement under certain circumstances. Under the amendments, employees are now permitted to take paid leave during the seven days after the death of the employee’s child if they would have qualified for medical leave under the existing PFML law due to their own pregnancy or to bond with the employee’s child in the first 12 months after birth or placement. These amendments are meant to give bereavement leave to employees who are new parents and suffer the loss of a stillborn baby or child under 12 months of age. For qualifying leave taken with respect to the placement of a child, it would only apply to an employee who experienced the death of a child under the age of 18 within the first 12 months after they were placed with the employee.
In the summer of 2022, Illinois enacted the Family Bereavement Leave Act. This act replaced the existing Illinois Child Bereavement Act that went into effect in 2016. The new law extends the provisions of the Illinois Child Bereavement Act to permit bereavement leave for “covered family members.” FBLA defines “covered family member” to include children; stepchildren; father-in-law; mother-in-law; grandchildren; grandparents; parents; stepparents; domestic partner; spouse; or siblings.
The Illinois FBLA covers all employers who are covered by the federal law under FMLA. This means that all public and private employers with 50 or more employees are required to provide bereavement leave benefits to eligible employees. Employees are eligible if they have worked at least 1,250 hours of service with the employer during the prior 12-month period and work within 75 miles of at least 49 other employees.
Under FBLA, employees are entitled to use a maximum of 2 weeks (10 work days) of unpaid bereavement leave to attend the funeral of a covered family member, make arrangements, or grieve the death of a covered family member. Notably, the leave also permits the absence from work due to a miscarriage; an unsuccessful round of an assisted reproductive technology procedure; a failed adoption match; a failed surrogacy agreement; a diagnosis that negatively impacts pregnancy or fertility; or a stillbirth.
As our nation faces the coronavirus pandemic, overdoses, suicide, homicide and mass mortality events (both manmade and natural disasters), employers are forced to acknowledge bereavement and its implications for families, while staying solvent and productive. It is a difficult balance for employers to strike. To address these needs and set national standards, Evermore recommends employers institute a bereavement leave benefit (note: not to be confused with sick leave):
1. Employers with five or more employees should have clear, written bereavement leave benefit policies in employee handbooks or outlined in similar guidance.
2. Small employers (fewer than 50 employees) should offer five days of unpaid leave to bereaved employees following the death of a close family member; thereby, permitting individuals to return to work at the conclusion of the five-day unpaid, leave period.
3. Mid-sized employers (between 50 and 499 employees) should offer five days of paid leave following the death of a close family member and employees should have the option of two additional weeks of unpaid bereavement leave; thereby, permitting individuals to return to work at the conclusion of the 15-day leave period.
4. Large employers (more than 500 employees) should offer ten days of paid leave following the death of a close family member and employees should have the option of two additional weeks of unpaid bereavement leave; thereby, permitting individuals to return to work at the conclusion of the 20-day leave period.
What employers can do
Employers should explore ways to ease the transition back to work for bereaved employees. For example, employers can connect employees with needed services (e.g. grief counselors), set up a foundation to channel contributions, or maintain an Employee Assistance Fund (funded by employees and/or employer) that can help workers with expenses related to the death. Employers can also offer flexible schedules and/or reduced hours for employees who are ready to return to work. Returning to work after a death can be difficult for the employee, the employer, and co-workers. There are many ways that employers can offer support during this time, including showing empathy, acknowledging that grief is ongoing, making specific offers to the employee (instead of a general “let me know if you need anything”), and taking cues from the employee.
Employers are vital anchors of family stability and community solvency.
ARE LEADING CHANGE
The Employers Bereavement Leave Pledge
As our nation faces the COIVD-19, drug overdoses, suicide and mass gun violence events, employers are forced to acknowledge bereavement and its implications for families, while staying solvent and productive. To provide employers guidance on bereavement leave policies, we have developed four recommendations that employers can use to ease employees back into the workplace and create a culture of goodwill.