Starting Jan. 1, California employers with five or more employees will have to offer all employees with at least 30 days on the job at least five days of unpaid, job-protected leave to grieve the death of a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law.
This new category of leave is “separate and distinct from,” that is, in addition to, the 12 weeks of unpaid, job-protected leave employers must offer employees to care for themselves or family members (and, effective Jan. 1, one additional designated person) under the California Family Rights Act (CFRA).
According to the U.S. Department of Labor, employers in the private sector that offer bereavement leave typically provide “three to five days for full-time employees following the loss of an immediate family member, and one day following the loss of an extended family member or close friend.”
Employees need not take their bereavement leave under the new law on consecutive days. According to a legislative analyst’s report, that provision reflects “the fact that wrapping up the affairs of a family member cannot necessarily be done in a neat and orderly schedule.” Nonetheless, the law requires the employee to complete the leave within three months of the date of the death of the family member.
The new law does not require that this additional leave time be paid, “except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee” for this purpose.
Upon the employer’s request, an employee must provide documentation of the death of the family member within 30 days of the first day of the leave. That documentation “includes, but is not limited to, a death certificate, a published obituary, a written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.”
An employer must maintain the confidentiality of any request for bereavement leave. Any documentation the employee provides to substantiate the leave request may only be disclosed by the employer to internal personnel or to counsel “as necessary, or as required by law.”
An employer with 5-19 employees may require an employee who claims their right to bereavement leave was violated, and who then immediately seeks a right to sue letter from the Civil Rights Department authorizing the employee to file suit against the employer, to engage in mediation before filing the lawsuit. The employee also may request mediation. The department must initiate the mediation within 60 days of receiving a request. A mediator will try to facilitate an agreement between the parties to resolve the dispute without litigation.
The mediation provision already is in place for disputes against small employers arising out of CFRA. The provision is a pilot program, which automatically will end on Jan. 1, 2024 unless the California legislature extends it.
Most California employers will have to update their employee handbooks to incorporate the new bereavement leave mandate, either to adopt such a policy in the first instance or to revise their existing bereavement leave policy. Those bereavement leave policies that meet or exceed all of the requirements of the new law may remain in place.
Dan Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at [email protected]. His Twitter handle is @DanEatonlaw
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