On September 29, 2022, California Governor Gavin Newsom signed Assembly Bill (AB) 1949, which amends the California Family Rights Act (CFRA) to require covered employers with five or more employees to provide eligible employees with five days of unpaid bereavement leave upon the death of a “covered family member”. The law takes effect on January 1, 2023.
Covered Family Members
“Covered family members” include:
- A spouse
- A domestic partner
- A child
- A parent
- A parent-in-law
- A sibling
- A grandparent
- A grandchild
To be eligible for bereavement leave, the employee must have been employed at least 30 days before the need for leave.
Use of Leave
Employees must take leave within three months of the date of death. However, the days of leave need not be consecutive.
Coordination with an Existing Policy
The law requires that leave be taken pursuant to any existing bereavement leave policy of the employer. If an employer’s existing leave policy provides for less than five days of bereavement leave, a total of at least five days of bereavement leave must be provided to the employee.
In the absence of an existing policy, the bereavement leave may be unpaid. However, the bill would permit an employee to use certain other leave balances otherwise available to the employee, including accrued and available paid sick leave.
Employers are permitted to request documentation of the death of the family member, which can include a death certificate, a published obituary, or a written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution or government agency. The employee is required to provide such documentation within 30 days of the first day of the leave.
Exceptions for CBAs
This amendment will not apply to an employee covered by a collective bargaining agreement if the agreement expressly provides: (1) for bereavement leave equivalent to that required by the bill; (2) for the wages, hours of work, and working conditions of the employees; and (3) for premium wage rates for all overtime hours worked, where applicable, and a regular hourly rate of pay for those employees of not less than 30 percent above the state minimum wage.
Next Steps for Employers
Employers should be mindful that this time off under CFRA is separate from and in addition to other leave offered to employees for their serious illness or to care for another with a serious illness. Meaning, the five days of leave for bereavement is not taken from the 12 weeks of leave provided under CFRA for other purposes.
Employers should also review their current CFRA policies and ensure that they are updated in accordance with the requirements under the law. Where an employer maintains an existing bereavement leave policy, they may also wish to update that policy to explain that time off under the company policy is concurrent with bereavement leave under CFRA. Employers who currently do not offer five days of leave will also need to review and adjust their policies accordingly.
Best practice is to provide training to human resource personnel and supervisors/managers who have responsibilities for addressing employee leave requests. Training may help to reduce claims of interference with or retaliation for the use of leave, in addition to ensuring confidentiality is maintained, required documentation is provided and time off is designated appropriately.