Further expanding generous protected employee leaves, California now will require most private employers to provide up to five days of bereavement leave for a covered family member’s death. Assembly Bill 1949, which Governor Newsom signed, takes effect on January 1, 2023.
Background on Bereavement Leave
Before this new law, employee bereavement leave depended entirely on an employer’s policy. California law has not required that private employers provide bereavement leave. Previous efforts to require bereavement leave met with vetoes; Governor Schwarzenegger vetoed bereavement leave bills in 2007 and 2010, with Governor Brown following in 2011. The first bill would have mandated up to four days of unpaid leave, while the others sought up to three days.
In his 2010 veto of AB 2340, Governor Schwarzenegger stated that “[w]hile well-intentioned, the choice of whether or not to offer unpaid bereavement leave should be left to the employer.” He also expressed concern about imposing “new and somewhat ambiguous burdens on businesses as well as subjecting them to new threats of litigation over California-specific employment laws.”
In vetoing AB 325 in 2011, Governor Brown responded that granting bereavement leave “is the moral and decent thing to do and I believe that the vast majority of employers voluntarily make such an accommodation for the loss of a loved one” in any event, while also expressing concern over that bill’s provision allowing employees to go directly to court to sue over an alleged violation.
Other than California, only Oregon, Illinois, and Maryland have state bereavement leave laws covering private employers. Illinois’ expanded bereavement leave law also takes effect on January 1, 2023.
What Does AB 1949 Do?
AB 1949 requires most employers to allow employees to take up to five days of bereavement leave as a protected absence upon the death of certain family members. The covered family members are a spouse, child, parent, sibling, grandparent, grandchild, state-registered domestic partner, and parent-in-law – using the same definitions as the California Family Rights Act (CFRA) for family and medical leave. Although added to the CFRA sections of the California Government Code, bereavement leave taken under AB 1949 does not count against an employee’s 12 workweeks of available CFRA leave each year. AB 1949 mandates additional leave.
An employee does not have to take the five days of bereavement leave consecutively. Instead, an employee may use the leave intermittently. Bereavement leave must be “completed within three months of the date of death of the family member.” For example, an employee could take three days immediately upon a family member’s passing, followed by two days for a memorial service weeks later. To be eligible, an employee must have been employed for at least 30 days before the commencement of leave.
Significantly, the new law does not limit employees to a total of five days of bereavement leave per year. Nor does it place any limit on how much bereavement leave an employee may take in a year. Without limitation, AB 1949 allows an employee to take up to five days of bereavement leave per covered family member, or per occurrence. Thus, if an employee even more tragically has more than one covered family member pass away in a year, that employee will be eligible to take multiple bereavement leaves, with up to five days for each death.
For an employee to use bereavement leave, an employer may require an employee to supply documentation of a family member’s death. An employer may request this information “within 30 days of the first day of the leave.” As examples of acceptable documentation, the new law lists “a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.”
An employee’s bereavement leave does not necessarily have to be paid. AB 1949 largely leaves that question up to the employer’s bereavement leave policy, if there is one. An employer can provide the five required days as paid bereavement leave, but is not required to do so. If an employer has no bereavement leave policy, then the leave may be unpaid. An employer’s policy also may provide for less than five days of paid leave. In that situation, the number of days that an employer’s policy provides as paid sick leave would be paid, while the additional days, adding up to five days of total leave, would be unpaid. For example, an employer’s policy could provide for three days of paid bereavement leave, with the employee then eligible to take two more days unpaid. Regardless of whether leave is paid or unpaid, an employee must be provided up to five days of bereavement leave. For any unpaid days, AB 1949 provides that an employee must be allowed to use accrued and available paid leave, such as vacation, paid time off, and personal or floating holidays if the employee wishes to do so.
An employee must maintain the confidentiality of any employee requesting bereavement leave under AB 1949. Any documentation that an employee submits “shall be maintained as confidential and shall not be disclosed except to internal personnel or counsel, as necessary, or as required by law.”
Like the CFRA, AB 1949 applies to employers with five or more employees. The law contains an exemption for some union employees subject to a “valid” collective bargaining agreement. The contract must expressly provide for bereavement leave at least “equivalent” to AB 1949’s requirements. As with other collective bargaining agreement exemptions in the Labor Code, the contract also must provide for wages, hours, and working conditions of the employees, provide premium wage rates for all overtime hours worked, and a regular hourly rate of pay “of not less than 30 percent above the state minimum wage.” In 2023, California state minimum wage increases to $15.50 an hour for all employees, with at least $20.15 an hour required for the union contract exemptions.
Providing a protected leave, AB 1949 prohibits employers from denying bereavement leave that the new law requires, as well as interfering with such leave. An employer cannot discriminate against, discharge, demote, fine, suspend, or expel an employee for exercising the right to bereavement leave, nor can an employer refuse to hire an individual for having done so. An individual can file a charge with the California Civil Rights Department (formerly the California Department of Fair Employment and Housing) for any alleged violation, with a lawsuit also possible after an employee receives a right-to-sue letter.
Takeaways for Employers
AB 1949 adds to California employers’ protected leave burdens. Many, if not most, California employers already provide bereavement leave, either as matter of employer policy or case-by-case as situations arise. With the enactment of AB 1949, employers should review their policies and practices concerning bereavement leave. Employers without a bereavement leave policy should consider adopting one, while employers with an existing policy should review it for compliance with AB 1949. Regardless, employers should review their practices and policies to ensure compliance with AB 1949.
Further, employers should determine whether they wish to provide paid bereavement leave and, if so, how much – while understanding that an employee still must be provided up to five days of bereavement leave, whether paid or unpaid. Employer policies should make clear to employees that they will not experience any discrimination or adverse action for requesting to use, or using, bereavement leave that AB 1949 protects. Employers should consult counsel for advice on these issues.
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