Bereavement Leave Becomes Mandatory in the Golden State

On September 29, 2022, Governor Gavin Newsom signed AB 1949 into law, making it unlawful for employers with five or more employees to deny an employee’s request to take up to five days of unpaid bereavement leave upon the death of a family member.  AB 1949 is codified as an amendment to the California Family Rights Act (CFRA), but bereavement leave under the new law must be considered separate and distinct from the CFRA’s family and medical leave entitlement.

In other words, the five days of bereavement leave must be provided in addition to the 12 weeks of family and medical leave permitted under the CFRA.

The new law will take effect on January 1, 2023.

Employee Eligibility and Definition of “Family Member”

An employee is eligible for bereavement leave under AB 1949 if they have been employed for 30 days prior to the commencement of the leave.  AB 1949 defines a family member as a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law.  Notably, the definition of family member for purposes of bereavement leave differs slightly from the definition of family member applicable to family and medical leave under the CFRA in that the latter definition was recently expanded to include a “designated person” starting on January 1, 2023.  The new bereavement leave provision, however, does not include a designated person under its definition of family member.

Timing

The five days of bereavement leave need not be taken consecutively, but must be completed within three months of the date of the family member’s death.

Documentation

If rquested by their employer, an employee seeking bereavement leave must provide documentation evidencing the death of their family member within 30 days of the first day of their leave.  Such “documentation” may include items such as a death certificate, published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.  Any documentation provided to the employer must be maintained as confidential and cannot be disclosed except to internal personnel or legal counsel, as necessary or as required by law.

Paid vs. Unpaid Leave

Whether the five days of bereavement leave are paid or unpaid depends on the employer’s existing bereavement leave policy.  AB 1949 requires that bereavement leave be taken pursuant to any existing bereavement leave policy of the employer.  In the absence of an existing paid bereavement leave policy, all five days of bereavement leave may be unpaid.  That said, an employee is entitled to use other leave balances otherwise available to them for some or all of their allotted five days of leave, including any accrued and available paid sick leave.

In the event an existing bereavement leave policy provides for less than five days of paid (or unpaid) leave, an employee is entitled to take additional days of unpaid leave until they have received a total of five days of leave.  For example, if an employer’s existing bereavement leave policy provides three days of paid leave, an employee is entitled to take an additional two days of unpaid leave.

Potential Legal Claims

Under AB 1949, it is an unlawful employment practice for an employer to refuse to hire, discharge, demote, fine, suspend, expel, or otherwise discriminate against an individual because they either:

1. Exercised their right to request bereavement leave; or
2. Gave information or testimony as to their own bereavement leave or another person’s bereavement leave in any inquiry or proceeding related to rights under AB 1949.

It is also unlawful for an employer to interfere with, restrain, or deny the exercise of, or attempt to exercise an employee’s rights under AB 1949.

Collective Bargaining Agreement Exemption

The bereavement leave law does not apply to employees who are covered by a valid collective bargaining agreement (CBA) if the CBA expressly provides all of the following:

1. Bereavement leave equivalent to the amount of unpaid leave required by AB 1949;
2. Wages, hours of work, and working conditions for employees;
3. Premium wage rates for all overtime hours worked, where applicable; and
4. A regular hourly rate of pay that is at least 30 percent above the state minimum wage (which will increase to $15.50 per hour regardless of employer size on January 1, 2023).

Employers with California workers should review their handbooks and policies to ensure that any existing bereavement leave policies are updated to comply with AB 1949’s requirements.  Employers without an existing bereavement policy should consider adding a compliant policy to their handbooks on or before the January 1, 2023 effective date.