Emery Gullickson Richards
Bereavement Leave Laws
Only a small number of jurisdictions have bereavement leave laws. For example, the Oregon Family Leave Act (“OFLA”) provides employees at certain employers[2] in the state with the right to take protected leave to make funeral arrangements, attend a funeral, or to grieve a family member who has passed away. This bereavement leave may last for a period of up to two weeks and must be completed within 60 days of the employee learning of the death of their loved one. Similarly, the Illinois Child Bereavement Leave Act provides employees[3] with bereavement leave rights in the event of the loss of a child, and an employee who loses more than one child within a year may take up to six weeks of bereavement leave. Other states, such as Massachusetts, have considered similar laws. Recently, a Massachusetts resident created an online petition urging legislators to take up the cause again amid the coronavirus pandemic, highlighting the increased focus on these policies today.
Although legal requirements for bereavement leave are rare, there are a number of employment laws and policies that can indirectly touch upon or relate to the loss of a loved one. For example, an employee may already be on Family and Medical Leave Act or other family leave in order to take on family caregiving responsibilities when the family member passes away, which may provide legal protections that govern the parameters surrounding their eventual return to work. Additionally, employees who experience loss may request accommodation under the Americans with Disabilities Act (“ADA”) if their grief exacerbates or creates a protected mental health or other medical condition. The ADA can also protect against discrimination for employees who may be perceived in the workplace as being depressed, even if they are not. In addition to an employer’s legal obligation to ensure that employee needs are met in compliance with these employment laws, as a practical matter, an employer’s benefits staff may be able to assist employees in understanding and navigating benefits options and resources after experiencing loss, potentially ranging from health insurance enrollment, to employee assistance plans, to emergency 401(k) withdrawals.
Grief and Mourning under Unprecedented Conditions
The current pandemic not only intensifies focus on bereavement leave, but also introduces a number of dramatically altered qualifying factors as well. For example, a typical reason for taking bereavement leave is to attend a memorial service—yet at the moment, the coronavirus is preventing many funeral gatherings and much travel. For employees who have lost a loved one at this time, their grief under these circumstances is no less real, while the need to make arrangements and order the affairs of the departed persists. Amid these unprecedented circumstances, employers are considering several steps to convey holistic support for bereaved employees, such as providing greater flexibility for how bereavement leave can be used or relaxing documentation requirements. As people navigate grief alone, physically separated from their support networks, this isolation further compounds the challenges to resilience posed by bereavement. Even when traditional resources for those affected by grief may be available in new ways, such as through telehealth and remote means, employers should remain flexible and vigilant to the exceptional circumstances present for those grieving at this time.
Offering Support in the Workplace
While the pain of grief is universal, grief is unique to each person and each loss. Readjusting to work after loss can take time, and work-life balance may tilt in different directions for different people. Many priorities often loom larger than work amid loss, yet the routine and distraction of work also can be a lifeline for some. For many individuals, empathetic compassion and thoughtful outreach from the work community can be especially meaningful, whereas others may need privacy and space to heal. Mediating support, respect, understanding, and confidentiality in the workplace in the context of individual needs, diverse perspectives on loss, and the ongoing need to maintain an organization’s operations is unique for each situation—and the current COVID-19 pandemic only intensifies the need to recognize and compassionately attend to each unique context.
By establishing or modifying bereavement leave policies, employers can offer guidance and clarity to help navigate these situations. As unique as each person’s grief remains, establishing policies that structure how an employer supports its employees can address a number of logistical questions before they arise within each unique situation. How inclusively is the loss of a loved one defined? Is additional leave available for the loss of an immediate family member, as opposed to an extended family member? How may an employee notify the company of a need for leave? Are certain amounts of unpaid bereavement leave guaranteed, or are requests for extended leave addressed sensitively on a case-by-case basis? How is paid leave administered? The clarity bereavement leave policies can provide on these issues helps to ensure prompt and consistent support to employees, not only alleviating logistical concerns for the employer, but also, crucially, providing a comfort in policy clarity and guidance for grieving employees as well.
These are issues worthy of advance consideration, especially in light of the current pandemic and its unfortunate, but not unexpected, consequences. The Blank Rome Labor and Employment team has resources available to support your endeavors.
For the latest updates, please visit Blank Rome’s Coronavirus (“COVID-19”) Task Force page.
[1] After the death of a loved one, an estimated 60 percent of private-sector workers get paid time off. Sheryl Sandberg and Adam Grant, Option B, (Random House 2017) (citing data from the U.S. Bureau of Labor Statistics). A report by the Society for Human Resources Management reported that 88 percent of its surveyed members reported that their organization offered paid bereavement leave for full-time employees. SHRM Paid Leave Benchmarking Report, 2017, available at shrm.org/ResourcesAndTools/business-solutions/Documents/Paid-Leave-Report-All-Industries-All-FTEs.pdf.
[2] Employers of 25 or more employees must provide OFLA leave to employees who have worked 180 days for the employer for an average of 25 hours per week.
[3] The Illinois law applies to public and private employers with more than 50 employees.