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by Ashley Cuttino, Ogletree Deakins, co-chair COVID-19 Litigation Practice Group and Kesha Wilson, Ogletree Deakins, counsel attorney

A: Human resources professionals are tasked with dealing with this heavy responsibility on a regular basis. Strategically crafted bereavement leave policies present an opportunity for an organization to show the company is invested in an employee’s well-being while the employee takes time and space to cope with their loss.

While there are no federal laws that require employers to provide bereavement leave for employees, some states and localities have incorporated bereavement leave into paid sick leave laws, Family Leave Acts or carved out specific ordinances to address bereavement leave.

For example, Illinois recently passed the Family Bereavement Leave Act (FBLA), which provides leave to:

  • Attend the funeral or alternative to a funeral of the covered family member.
  • Make arrangements necessitated by the death of the covered family member.
  • Grieve the death of the covered family member.
  • Be absent from work due to a miscarriage, an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure such as artificial insemination or embryo transfer, a failed adoption match or an adoption that is not finalized because it is contested by another party, a failed surrogacy agreement, a diagnosis that negatively impacts pregnancy or fertility, or a stillbirth.

There also is currently a bill on the desk of California’s governor to be signed by Sept. 30, 2022, as an amendment to the California Family Rights Act. This bill, if signed, would make it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to five days of bereavement leave upon the death of a family member. The bill would require that leave be completed within three months of the date of death. The bill would require that leave be taken pursuant to any existing bereavement leave policy of the employer. Under the bill, in the absence of an existing policy, the bereavement leave may be unpaid. However, the bill would authorize an employee to use certain other leave balances otherwise available to the employee, including accrued and available paid sick leave.

An important element to consider when developing a bereavement leave policy, is what individuals will be considered “covered family members.” In today’s world with blended families and contemplating the many ways an employee may suffer a loss, which could include a miscarriage, this is another opportunity for the employer to be flexible and inclusive. Another important element is how much time to offer. Standard policies typically offer three to five days for bereavement leave. Some policies take into consideration differing time periods for bereavement leave for individuals considered “immediate” family members or “extended” family members.

The Illinois bereavement statute highlights the importance of having a flexible policy to accommodate employees at various stages during the grieving process.

Does your organization offer an employee assistance program that could provide grief counseling for the employee? If your organization is subject to the Family and Medical Leave Act (FMLA), an opportunity may arise where the employee needs to take additional time away from work to address their own mental health condition related to their grief. This also may raise paid sick leave and potential Americans with Disabilities Act (ADA) issues that may require leave and/or other accommodations during this time of profound sadness for a member of your workforce. Is a discussion with the employee necessary to determine whether the employee is dealing with a mental impairment that requires an interactive process and a discussion of reasonable accommodations?

There is no simple or one-size-fits-all approach to developing a bereavement leave policy, but employers can look to various laws to craft a flexible policy aligned with the corporate culture and mission of the organization. Open and clear communication about all available resources is key to the employee feeling supported during a time of loss.

This column is provided by Ogletree Deakins, Atlanta, as part of a partnership with the American Rental Association (ARA) for ARA’s Human Resources Assistance Program. ARA members can receive a single sign on from the ARA webpage to a microsite specific to ARA on the Ogletree Deakins platform; get access to two 30-minute calls with an HR professional per year; access to an FAQ section as well as to Ogletree Deakins’ library of webinars; and access to Ogletree Deakins’ ARA-specific webinars. To learn more, visit ARArental.org/manage-business/hr.