Five Important Questions About FMLA and Bereavement Leave

By Prerna Shah

 

When a loved one dies, many family members seek bereavement leave to attend to family affairs, their grief, and sort through the many changes that invisibly unfold behind closed doors. It may be surprising to learn that most employees have no legal right to take leave, except in five states in America (learn more about state bereavement laws here).

The Family Medical Leave Act, also known as FMLA, provides job and benefits protection for 56 percent of the United States workforce; however, bereavement is not an eligible condition for job or wage protection. Many may be surprised to learn that newly bereaved families have no legal right to take leave to cope with the death of a loved one. 

So, what is a newly bereaved family member to do? 

In honor of National Employee Benefits Day, Evermore sat down with Jeff Nowak, an FMLA expert, who provides legal strategies and solutions for employers of all sizes across the globe, for an in-depth conversation on all aspects of FMLA.

 

1) What is the FMLA?

FMLA is a federal law that provides up to 12 weeks of leave to an eligible employee in a 12-month period. There are a number of reasons why you may be eligible for FMLA job protection, including 

• An employee’s own serious health condition, 
• the employee has to care for a family member with a serious health condition, or 
• due to pregnancy, 
• bonding time after childbirth or adoption, or placement into foster care, and
• a qualifying need due to the active duty of a spouse, child, or parent.

While FMLA generally covers all public-sector employers, it also extends coverage to private employers that have 50 or more employees in a 75-mile radius. In general, to be eligible, an employee must have worked for at least 1,250 hours over the previous 12 months. 

 

2) Does FMLA offer bereavement leave? 

No, generally, FMLA does not specifically provide bereavement leave; however, Department of Labor statements and legislative history indicate a miscarriage is classified as a “serious health condition.” As a result, both miscarriage and stillbirth — two conditions before independent life begins — should be eligible for FMLA bereavement leave if the birthing person is unable to work because of her own “serious health condition” (e.g., physical recovery from miscarriage and/or labor and delivery, emotional distress). Paternal coverage may be extended if the spouse is caring for a loved one with a serious health condition.

For most bereaved families, however, bereavement is not an eligible event for FMLA job or wage protection.

Novak shares, “Oftentimes, employers have their own bereavement leave policies. Generally, these policies cover one to three days of bereavement leave, but that is not enough for most people. FMLA can be invoked to cover bereavement leave if the employee has a serious health condition like depression or anxiety, but you would need to invoke the ‘serious health condition.’”

 

3) How can you best communicate with your employer after a loss?

Communication is key. 

According to Novak, “It’s so critical that the employee simply communicates upfront. Be candid with your employer. I’m hurting right now. This is a really difficult time for me, I can’t keep my attention on my work when I’m dealing with this loss in my life.”

“Some of us are fearful of that, right? We’re fearful of what the employer may do. We are in fear of losing our job as a result. But it’s important to characterize what you’re dealing with; if you need to start using words like, “My mental health is at issue here, or I just need to leave for my own mental health.” I tell employers that that line alone triggers an FMLA obligation. Now we potentially are in an FMLA-protected situation.”

Novak suggests that it’s beneficial to involve the HR team: “It’s important to be in full communication with the HR team. Look at your FMLA policy and find out, who does your employer want you to communicate with?”

Candid and open communication with the employer can make a difference; however, only share what you feel comfortable with. When the employer understands that coping is inducing mental distress, that’s when FMLA may be triggered, and this affords the employee job-protected leave. 

 

4) What compensation is offered through the FMLA?

Leave associated with FMLA is unpaid. 

When someone close to us dies, families often incur unexpected costs like funeral expenses, moving property or estate titles, among others. Novak shares, “By its very nature, federal FMLA is unpaid. And that remains (so) today. And I would say for the foreseeable future, federal FMLA is going to be unpaid.”

Nowak adds, “As a result of Congress being unable or unwilling to pass a paid leave law at the federal level, we’ve seen quite a bit of growth at the state and local level when it comes to paid FMLA leave.” 

If you are able to take bereavement leave, it’s important to keep in mind that employers have no legal obligation to pay the employer during their leave. 

Nowak notes that while a handful of states have passed their own FMLA laws, others have passed paid FMLA laws and others have provisions for paid sick leave (learn more about state bereavement laws here). 

Nowak says, “It’s likely that we may see a paid leave law that involves contributions from either the employer or the employee or both sharing (contributions) that provide the funding for paid leave.” 

 

5) Where can I find out more information?

For more in-depth coverage of our session with Jeff Nowak, you can head to our YouTube channel, and don’t forget to subscribe while you are checking our videos. We regularly update our channel with resources from experts working in the area of grief and bereavement, and our ‘In the Know’ sessions are very popular and informative. 

On our website, you will also find many relevant and expert-led resources on FMLA – miscarriage and stillbirth, state laws and legislation related to bereavement leave, U.S. military bereavement leave guidance, general information on grief, how community leaders can help, our national grief support directory, books on grief for adults and children, our most recent achievements in advancing in bereavement care, and more. 

Please also help spread the word about FMLA and bereavement leave, have these conversations with your colleagues and coworkers on this National Employee Benefits Day.