elderly woman grieving over the loss of her husband

Comprehensive Overview of Bereavement Leave

When a loved one dies, a person is likely to have the need to take at least some time away from work to grieve and to tend to essential affairs that arise. When a person is employed, there may be some fairly strict restrictions on what can and cannot be done in the way of bereavement leave. With this in mind, a person is wise to have a basic understanding of the legalities and other factors associated with bereavement leave in the United States at this juncture in time.

Does the Law Mandate Bereavement Leave for Employees?

Generally speaking, federal law does not require an employer to provide an employee with bereavement leave, even when a close family member passes on. The same generally holds true for the state laws across the country, including in California.

Having said that, the Family and Medical Leave Act, a federal law, allows qualified employees to take up to 12 weeks off to care for a dying family member. In order to qualify for protections and benefits under FMLA, a person needs to work for an employer of a certain size. Specifically, a business currently must have 50 or more employees. In the alternative, if a business does not currently have 50 or more employees, if it had that number of employees for 20 or more weeks in the preceding year, the provisions of FMLA apply.

FMLA does not explicitly extend to cover the time period between death and a funeral or a mourning period. With that said, as a matter of some routine, a good number of employers will not revoke FMLA benefits directly upon a family member’s death and will permit an employee to continue time off under FMLA for a short period of time after that passing.

Union Bargaining Agreements

Unions oftentimes negotiate bereavement leave for their members. In other words, the contract they negotiate for their members sets forth a specific number of days a worker can take after the passing of a specifically defined family members. Typically, this will include immediately family members (spouse and children), parents, in-laws, and siblings.

There is no set timeframe for bereavement leave in a union-negotiated contract. Oftentimes, the amount of time permitted depends on the nature of a worker’s relationship with the deceased individual. In other words, a worker is likely to have more bereavement time when a child dies that would be the case if his or her brother or sister passed on.

Employer-Employee Contracts

Some employers enter into specific written contracts with their employees, agreements that are not the result of negotiations with unions. In many instances, these contracts do contain provisions pertaining to bereavement leave. Some employers have a standard bereavement policy that is contained in an employment contract.  In other instances, a business will be willing to negotiate time off of different types with an employee or a prospective employee.

Personal Leave Days

Another scenario involves an employer who allocates a set number of what are identified as personal leave days in its employee handbook or via a more informal or verbal agreement with employees. Personal leave days are above and beyond sick days and vacation days and can be used for any purpose. When an employer adds personal leave days into the mix, the state reason or presumption is that a worker will use these days for situations like a death in the family or bereavement leave.

There can be a fairly significant disparity in what an employer might make available in the way of personal leave days. A good number of businesses may provide a couple of personal leave days, particularly when a new employee has only just started working for a company. The number of available personal leave days may grow larger each year the longer an employee works for a company.

Supervisor’s or Owner’s Discretion

Yet another common way of dealing with bereavement leave is allowing time off for this purpose at the discretion of a worker’s supervisor or the owner of the company. The reality is that a person really may have different bereavement needs depending on factors like the relationship her or she had with the person who died. The location of the deceased person can also play a role. For example, less bereavement time may be needed if the deceased person lives in the same community as the employee. If a person has significant responsibility for planning a funeral and other matters, that can play into a supervisor or owner’s decision to permit more rather than less bereavement leave.

One caveat associated with bereavement leave at a supervisor’s or owner’s discretion is that all similarly situated employees must be treated the same. When this type of leave is permitted on a discretionary basis, the risk does exist that an employee may complain of discriminatory or unfair treatment if he or she doesn’t feel he or she is given bereavement leave time comparable to what someone else in the company received previously.

No matter the specific legal structures surrounding bereavement leave, an employee best protects his or her legal interests by understanding the essential elements of bereavement leave. This includes an understanding of what does and does not exist in the want of legal rights and bereavement leave.