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Untangling Questions About Bereavement Leave

Employers have many issues to consider when writing employee leave policies. Questions such as, “How will time accrue?” “When do employees become eligible for leave?” and “Under what circumstances should employees be paid when on leave?” barely scratch the surface. But when the issue is bereavement leave, employers may feel they have more at stake than just developing a policy that will be seen as a desirable employee benefit that’s also fair to the employer.

Because of the emotional state of employees in need of bereavement leave, employers should be especially sensitive when deciding the terms of a policy. In addition to considering workplace trends and what other employers offer, employers have some new thinking to consider in the form of proposed legislation.

It hasn’t seen any major action, but a bill was introduced in Congress last summer that would amend the Family and Medical Leave Act (FMLA) to allow eligible employees of covered employers up to 12 weeks of leave a year after the death of a child. The Parental Bereavement Act (S. 1358), sponsored by Senator Jon Tester, a Montana Democrat, was prompted by Tester’s belief that the “last thing [parents] should be worrying about is whether they’ll lose jobs as they deal with life-changing loss.”

Tester’s concern is one many employers share, even in the absence of legislation making any particular kind of bereavement leave mandatory. Common bereavement leave policy includes one to three days of paid time off to attend the funeral of a close family member.

Even without federal law requiring bereavement leave, employers have to keep many issues in mind when deciding on a policy. One issue to consider is what will trigger the leave. For example, will the policy apply when an employee’s parent or child dies but not when an aunt or uncle dies?

“Given the emotional impact on employees dealing with the death of a loved one, employers need a policy that is flexible enough to deal with each individual circumstance but stringent enough to prevent abuse of the policy,” says Jason S. Ritchie with Holland & Hart LLP in Billings, Montana. “I recommend that bereavement policies use the same definition of immediate family member that is used in the FMLA regulations – spouse, child, or parent.”

Some employers choose very specific and limited policies aimed at removing all question about who is eligible, but such policies can still bring problems. “The most significant problem with a specific bereavement leave policy is having the flexibility to deal with each employee’s unique situation but stringent enough to have a consistent application and prevent abuse,” Ritchie says.

Even though the FMLA doesn’t typically cover bereavement leave, the recent expansion of the law regarding military service members does make some employees eligible for FMLA leave on the death of a family member.

The law now entitles eligible employees to take leave when a spouse, child, or parent is on active duty or called to active duty status for a number of “qualifying exigencies.” One of those qualifying exigencies is “[t]o address issues that arise from the death of a covered military member while on active duty status, such as meetings and recovering the body of the covered military member and making funeral arrangements” (29 C.F.R. 825.126(a)(7)(ii)).

Even though the federal FMLA doesn’t provide bereavement leave except for family members of military service members killed during active duty, some states have laws that affect an employer’s bereavement leave policy.

This fall, a New York state law went into effect that prohibits employers from discriminating against employees in a same-sex committed relationship regarding bereavement leave. The state law requires that employers that offer bereavement leave for the death of a spouse or the spouse’s child, parent, or other relative must grant the same leave for an employee’s “same-sex committed partner.” Same-sex committed partners are defined as individuals who are financially and emotionally interdependent in a manner commonly presumed of spouses.

Another state effort regarding bereavement leave took place in Oregon in 2011. The Oregon legislature considered, but didn’t pass, legislation that would have expanded the Oregon Family Leave Act to provide up to two weeks of leave for the death of a family member.