Bereavement Leave in California Explained

Bereavement Leave in California Explained
min read
July 15, 2022

Later this summer, legislators in California will vote on a bill that would require all employers to give their employees five days of bereavement leave, either paid or unpaid, and protect those employees’ jobs for when they return to work. 

At this time, bereavement leave in California is not mandatory. But what if it is soon? And are there any other requirements that come with this law? What are the basics of this leave in the first place? We’ll go over all this and more, so keep reading.

What Exactly is Bereavement Leave?

Before we get into the specifics for California, let’s get a solid understanding of bereavement leave first. Bereavement leave refers to the time taken off by a worker when there is a death in their family. This time can range from a day to several weeks and usually happens within three months of the death. Most California employers are not, currently, required by law to give bereavement leave to their employees (but that may be changing!).

Bereavement leave can be considered a job benefit, like paid time off or paid sick time. In many larger companies, it is an established policy that is outlined in staff manuals and managed by the human resources department. 

It is less common with smaller businesses, especially if they don’t have a dedicated HR staff person and have not taken the time to write up how they want to handle bereavement. According to the Bureau of Labor Statistics, 76% of companies with more than 100 workers offer paid bereavement leave, while only 47% of those with less than 100 employees do.

Is Bereavement Leave Mandatory in California? 

Currently, bereavement leave is not mandatory in California. In some cases, at larger companies, it is one of the employee benefits that would have been negotiated as part of a collective bargaining agreement. Or it may be covered in an employee handbook, which is the first place to look for information regarding such a policy.

What is the New Bereavement Leave Law in California?

This summer a new leave law may be coming down the pipes in California. Earlier this year, Assemblyman Evan Low, D-Cupertino, and his colleagues introduced a bill to the state legislature that would legally mandate employers to provide bereavement leave to employees at the death of a family member. Under the proposed bill, AB-95, and potential law:

Although it's hard to predict how the vote will go, experts seem convinced that the bill will become law once it comes to a vote. It has bipartisan support, and professional organizations such as the Society for Human Resource Management have predicted that it is “likely to pass.” 

Who Currently Qualifies for Bereavement Leave in California?

In many companies, bereavement leave is limited to full-time workers, and some companies limit it to those who have worked for the company for a certain amount of time, such as 30 days or six months. In some cases, it's not allowed for part-time employees—or it is left up to the discretion of the supervisor or business owner as to whether and how much leave can be taken.

Smaller companies sometimes don’t have a clear policy for this kind of leave and handle each system on an ad-hoc basis. That may work fine if, say, it’s just you and your partner, but when a business has multiple employees, the waters can get muddy. 

That’s what the new law hopes to address, by enshrining in law rules that will be applicable to all California businesses. Under this new law, employees qualify for bereavement leave if they have worked for their employer for more than 30 days prior to the beginning of their leave.

The new law would take away the complexity that small business owners may face in determining what to do each time the situation arises, by giving a standard solution that will be applicable throughout the state, for businesses both large and small.

Who is Considered Immediate Family for Bereavement Leave in California?

Generally, bereavement leave is valid when it is for the loss of an immediate family member. Exactly who is considered an immediate family member varies from company to company. Here, for example, are the requirements for federal employees used by the U.S. Office of Personnel Management; the person who died must fit into one of the following categories:

According to California’s potential new law, the five days of leave can be for a spouse, child, parent, sibling, grandparent or grandchild, domestic partner, or parent-in-law. Any business owner can expand on this listing to make it closer to what’s offered to federal employees. They would not, however, be able to offer less than the law specifies. 

Is Bereavement Leave the Same as Funeral Leave in California?

These terms are often used interchangeably by employers. In general, funeral leave is considered the time that you’d take off to attend a funeral, whether it is local or requires you to travel to another state. Funeral leave is often allowed for three to five days, and may or may not be paid time off.

Bereavement leave, as viewed by many employers, is somewhat more flexible and could include a range of activities–such as organizing a will, packing up a home or apartment and disposing of its contents, and finalizing the deceased person’s financial situation. Employers may give the employee five or more days off—although once again, whether it is paid or not is up to the employer (and of course, these five days could become mandatory in California soon). 

Some companies charge their employees’ bereavement leave to sick leave. And, according to AB-95, it could be charged to accrued time earned already.  It’s fairly typical of companies, however, to make bereavement leave a separate time off category that won’t reduce employees’ PTO. 

An employer may also use the term “bereavement pay” when talking about the time taken off following a family death. That generally indicates that the time taken off, up to a stipulated number of days, will be paid at the employee’s usual rate of pay.

Can You Use FMLA for Bereavement Leave?

No, unfortunately, you can‘t use FMLA for bereavement leave.

The Family and Medical Leave Act (FMLA) is a federal labor law that states that employees must be given job-protected, unpaid leaves of absence of up to 12 weeks for qualified medical and family reasons. 

In California, this protection is further affirmed by the state of California Family Rights Act, which reiterates the protections given at the federal level. Workers can use accrued vacation time, sick leave, or other compensatory time previously negotiated with the employer to pay for all or part of their time off. This time can be used to provide health care for a sick loved one, recover from a serious illness, or care for a newborn or newly adopted child.

The FMLA was created to help families thrive when parents are in the workforce. It was not meant to be used as bereavement leave, and this use is not sanctioned by state or federal law. In other words, if your loved one is suffering from a terminal illness and you need to be with them in the hospital, FMLA can cover you by providing you with unpaid time off that protects your job. But if that person dies, FMLA no longer applies. If that is the case, an employee would need to talk to their supervisor or HR administrator to switch their leave.

How Many Days of Unpaid Bereavement Leave Are allowed?

Currently, the answer to this question would vary depending on the policies of the employer, who determines the limits of such leave. If AB-95 passes and is signed into law, however, employment law would change, and employers would be required to offer five days off, either paid or unpaid. If it is unpaid, employees would be allowed to charge the time to paid sick leave, vacation time, or other accrued time off.

Until AB-95 is voted into law by the California legislature—which may happen as soon as this summer—you’ll find many variations on what is offered to employees. Employees who work for the California government, for example, are currently given three paid days off for a loss.

Employees of Los Angeles County are allowed three paid days off for full-time employees, while temporary employees who have completed 200 days of service receive eight hours of bereavement leave. In San Francisco, meanwhile, city employees get up to five days if they are required to travel out of state for their bereavement.

Developing a Bereavement Leave Policy

So let’s say you run a mid-sized plant nursery in Sacramento with 26 employees, and you have realized that you need to develop a standard policy for all employees that explains your company’s bereavement leave rules and instructs them on the appropriate steps if they wish to take leave. What are some of the factors that you should include in your policy? Consider the following checklist:

As you prepare a policy for your employees, also consider how this leave will impact you, the business owner. How will you track employee leave, for example, and what will your procedure be if that employee is an essential worker who is needed to keep processes running smoothly? 

You may also want to consider running your policy by your law firm to receive legal advice on whether the steps you’ve taken are all within the scope of the law—especially if AB-95 passes, bringing new regulations to the table.

Having a Bereavement Policy is Good for Your Employees—and Your Business

Having a written bereavement policy is a good idea for any size business. Employees who need to take time off for a death will likely be stressed and grieving. If you’re able to sit down with them and work out the best way to manage their situation with your clearly stated policy in hand, you avoid making their plans harder for them to manage than is necessary. 

With new legislation coming down the pike in California, there’s never been a better time to sit down and plan out the benefits you’ll offer your employees once the law is passed. Why not make the effort and get that policy started today!

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