WORKPLACE LAW -
Bereavement Leave
Question:
My small business must often juggle different employee leave requests. I now hear that I might have to provide employees with bereavement leave. Can you explain who is entitled to bereavement leave, when, for how long, and what employers must do?
Answer:
Although existing law allows employees to take time off from work without fear of discharge or discrimination for a number of specified purposes, there is currently no law that requires employers to grant time off for bereavement leave. Among the programs currently allowing workers to take unpaid leave is the California Pregnancy Disability Leave program, which provides unpaid time off for women disabled by pregnancy, childbirth, or related medical conditions. Additionally, the federal Family and Medical Leave Act and the California Family Rights Act require all public and private sector employers with 50 or more employees to grant employees up to 12 weeks per year of unpaid leave for qualified purposes. Although many employers offer some sort of bereavement leave to their employees, no federal or state law currently requires employers to provide bereavement leave.
That may change soon. In February 2010, Assemblyman Bill Monning (D- 27th District) introduced Assembly Bill 2340, which would provide California employees with the right to take up to three days of unpaid leave from work upon the death of a close family member. A member of the Assembly’s Labor Committee, Monning introduced the bill by noting that everyone suffers the loss of a relative at some point and without this legislation an employer could legally discharge an employee for requesting or taking leave of absence to prepare for or attend the funeral of a loved one.
If passed, Assembly Bill 2340 will prohibit an employer from discharging, disciplining, or discriminating against an employee for requesting or taking up to three days of unpaid bereavement leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner. Under this pending bill, any employee who has been employed by the employer for at least 60 days would be entitled to up to three days of leave, which three days need not be used consecutively and can be used within 13 months of the family member’s death. Employers would be allowed to request documentation of the family member’s death, such as a death certificate or obituary. Although the bill would provide that bereavement leave is unpaid, the employee could use accrued vacation or other paid time off that is otherwise available. The bill would not apply to an employee who is covered by a valid collective bargaining agreement that otherwise provides for bereavement leave.
Assembly Bill 2340 would allow an employee who is discharged, disciplined, or otherwise discriminated against in terms or conditions of employment because the employee has inquired about, requested, or taken bereavement leave, to obtain reinstatement and to recover actual damages. Additionally, the employee could either file a complaint with the Division of Labor Standards Enforcement or bring a civil action in court. Under this pending bill, if the employee prevails, the court may award the employee his or her reasonable attorney’s fees.
The bill, with minor amendments, passed the Assembly and Senate, and has been forwarded to Governor Schwarzenegger for his signature. If he signs the bill, it will become law effective January 1, 2011. The Governor vetoed similar legislation in 2007 that provided for four days of unpaid leave. Opponents of this bill argue the new law removes employer flexibility to balance bereavement leave requests against other employee leave requests, which leave requests can prove especially onerous for small businesses.
Employers should keep an eye on the status of this bill, as bereavement leave may soon become mandated for California employers. Employers that already have bereavement leave policies are reminded to provide leave in accordance with the provisions of their policy, and if Assembly Bill 2340 becomes law, make sure their policies mirror the provisions of this bill.
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