California Joins Growing List of States That Mandate Bereavement Leave
Time to update your employee handbooks. Governor Newsom has signed AB 1949, making California one of the few states to mandate bereavement leave for employees, effective Jan. 1, 2023.
Which Employers and Employees are Affected by the California Bereavement Leave Policy?
All public and private employers that employ five or more California employees are covered. To be eligible, employees must have been employed by the employer for more than 30 days prior to the start of the leave. The new law doesn’t apply to employees covered by a valid collective bargaining agreement if the agreement (1) expressly provides for bereavement leave equivalent to that required by AB 1949, and (2) provides premium wage rates for all overtime and a regular hourly rate of pay at least 30 percent above the applicable California minimum wage.
When Can Bereavement Leave Be Taken?
Not all familial relationships are covered. Employers must provide eligible employees up to five days of unpaid bereavement leave after the death of a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. This is similar to an employer’s obligations under the California Family Rights Act, which provides time off to care for a sick family member. Any time off must be completed by the employee within three months of the date of death, but the five days of bereavement leave need not be consecutive.
If requested by the employer, the employee must also provide some proof of the employee’s eligibility to take bereavement leave (e.g., a published obituary, death certificate, or other written verification) within 30 days of the first day of the leave. AB 1949 requires that all of the information provided by the employee (including the employee’s request) be kept confidential.
What are the Consequences for Not Providing Leave or Denying Bereavement Leave?
AB 1949 prohibits employers from discriminating or otherwise retaliating against an employee who requests or takes bereavement leave. The law likewise prohibits employers from discriminating or retaliating against an employee who provides information or testimony as to another person’s bereavement leave. It is also an unlawful employment practice for an employer to interfere with or deny an employee’s exercise of his or her rights under AB 1949. Engaging in any wrongful conduct may entitle an aggrieved employee to past and future lost income and benefits, emotional distress damages, and punitive damages.
What Should Employers Do Right Now?
Many California employers already have policies that provide bereavement leave. If that is the case, now is the time to review your policy to ensure it complies with the new five-day requirement. Any existing policy that provides for less than five days of unpaid leave should be updated to permit up to five days. If your existing policy provides for less than five days of paid leave, the policy should be revised to reflect that the employee is entitled to additional days of unpaid leave (for a total of no less than five days of leave). And while AB 1949 doesn’t mandate paid leave, policies should be revised to permit the employee’s use of any vacation, personal leave, accrued and available sick leave, or other compensatory time off that is available.
Disclaimer: Please contact your Payne & Fears attorney for current guidance on the subject matter of this article.