Rethinking Bereavement Policies for a Modern Approach to Well-Being

​Losing a loved one is one of the most challenging times for employees, and employers often show support by providing time off and resources to help them deal with their grief.

Due to changes in the law and a shift in the way modern businesses manage their workforce, it could be time to rethink your approach to bereavement leave and related benefits. Developing a clear policy that highlights employee resources and benefits can go a long way with your employees. Here's an overview of recent workplace trends regarding bereavement leave laws, policies and best practices.

Updating Policies to Reflect the Modern Era

Oftentimes, businesses provide paid or unpaid bereavement leave after the death of an immediate family member. Some companies are developing more robust policies to help employees through an emotional time. Doing so could help you stand out from your competitors when it comes to employee satisfaction and retention.

The benefits you offer will depend on many factors, including your industry, business environment, workplace culture, and budget. You should recognize that every employee handles grief differently and may have unique needs as they process their loss, make funeral arrangements, and focus on their mental health and wellbeing.

Here are some aspects you might include in your policy:

Broad Coverage: Some policies cover only immediate family members, while others include other relatives, close friends and other non-familial ties. Be sure to clearly define who is covered.

Pregnancy-Related Grief: The loss of a pregnancy can be devastating, whether as the result of a miscarriage, failed in vitro fertilization (IVF), or another cause. Many employers now recognize the impact of such losses and are adding them to their bereavement policies.

Paid Time Off (PTO): Providing some amount of PTO can help employees focus on coping with their grief and handling any funeral, estate, and financial matters arising from the loss of a loved one. Many companies offer three to seven paid workdays.  

Flexible Work Arrangements: Consider allowing employees to work remotely, reduced hours or a different schedule as they mourn, travel, attend to family needs, and make funeral arrangements.

Pet Bereavement: Coping with the loss of a beloved pet can be traumatic. Employees may need to make emotional final arrangements during business hours. Consider giving employees time to attend to these arrangements and grieve their furry (or scaley or feathered) companions.

Employee Assistance Program (EAP) and Grief Counseling: Many employers offer EAP services to help workers manage issues they encounter in their personal lives, including grief, stress, family matters, and work-life balance. You may want to remind employees in your bereavement policy and follow-up communications that these services are available. 

Documentation: You should carefully decide whether to ask employees for documentation of their need for bereavement leave. Note that many employers are moving away from requesting a death certificate or other verification and are trusting employees to determine their need for leave. You may, however, want to ask employees with attendance issues or recent disciplinary action to provide verification. Be sure that your policy is clear, fair, and consistently applied. Consider asking for documentation that is easy to obtain, like an obituary or funeral announcement. 

State and Local Leave Laws

Although only a few states and localities have bereavement-specific leave laws, some now require you to offer such leave. We expect more jurisdictions to follow suit in the coming years.

Here are a few examples of bereavement leave laws that may affect your business:

• California: California employers with five or more employees must provide up to five days of unpaid leave to eligible employees for the death of a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. This leave does not need to be taken consecutively, but must be completed within three months of the family member's death. 
• Illinois: The Family Bereavement Leave Act requires employers that are covered by the federal Family and Medical Leave Act (FMLA) to provide up to 10 days of unpaid leave for employees after the death of a family member, which includes an employee's child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent. The Illinois law also covers leave related to miscarriage and other fertility-related losses.
• Maryland: An amendment to Maryland's Flexible Leave Act requires private employers with at least 15 employees to allow employees to use earned paid leave for the death of an immediate family member, which is defined as an employee's spouse, parent, or child. This includes a biological child, adopted child, foster child, stepchild, or legal ward.
• Minnesota: While Minnesota does not have a statewide law requiring bereavement leave, you should check local ordinances. For example, Bloomington's law (effective July 1, 2023) specifically covers bereavement leave.
• Oregon: The Oregon Family Leave Act (OFLA), which applies to employers with at least 25 employees, provides up to two weeks of leave after the death of a family member.
• Washington State: Tacoma's paid-sick-leave law covers bereavement leave.

You should note the trend for jurisdictions to allow workers to use earned PTO for any reason.

Federal Laws May Apply

There are also a few federal laws to consider in some bereavement-related situations. 

The FMLA does not cover bereavement leave except in limited circumstances involving the death of a relative who is a military member. But you shouldn't automatically dismiss a request for FMLA leave from one of your employees after a death of a loved one. A grieving employee may be eligible for FMLA if their grief leads to a physical or mental health condition. Employers with at least 50 employees must provide employees with up to 12 weeks of unpaid leave per year for qualifying reasons, including to care for their own serious health condition.

Although bereavement is not considered a serious health condition on its own, in some cases grieving the loss of a loved one may lead to depression, anxiety, or other physical or mental health challenges that could be considered a serious health condition under the FMLA. Congress has considered legislation in recent years to add the loss of a child to the list of reasons employees can use for FMLA leave.

Although grief following the loss of a loved one will not always be covered by the Americans with Disabilities Act (ADA), you should recognize it as a possibility. Depression, post-traumatic stress disorder, and other mental health conditions may be considered a disability under the ADA if they substantially limit a major life activity, such as walking, talking, seeing, hearing, or learning. Under the ADA, covered employers must provide reasonable accommodations to qualified employees with disabilities, unless doing so would cause an undue hardship. A reasonable accommodation might include a leave of absence.

Megan Winter is an attorney with Fisher Phillips in San Diego, Calif. George Reeves is an attorney with Fisher Phillips in Columbia, S.C. © 2023 Fisher Phillips. All rights reserved. Reposted with permission.