After finding its way to the desks of past governors only to be vetoed, California Governor Gavin Newsom signed bereavement leave into law for a large number of California employees.   Effective January 1, 2023, employers with five or more employees will be required to provide up to five days of bereavement leave to employees upon the death of a family member.[i]

In 2023, California joins a small group of states in requiring employers to providing bereavement leave to employees.[ii]   California’s new law (AB 1949), will require businesses with five or more employees to allow eligible employees (those employed for at least 30 days) to take up to five days of bereavement leave without repercussion.  The bereaved employee’s leave can be taken in conjunction with the death of an immediate family member, which is defined as a spouse, child (including a biological, adopted, step or foster child), parent/parent-in-law, sibling, grandparent, grandchild, or domestic partner.[iii]

Other provisions of AB 1949, including the following: an employee’s leave must be completed within three months of the death (although the leave does not have to be taken on consecutive days); the employer must maintain confidentiality regarding the leave; the leave does not have to be paid, but employees can utilize time they may have accrued, including vacation days; and, finally, if an employee already receives bereavement leave pursuant to a collective bargaining agreement, AB 1949 does not apply.[iv]

The enactment of AB 1949 is a significant step for the golden state, as there are no bereavement leave measures under federal law and only a handful of states have enacted such measures.  Oregon was the first state to provide bereavement leave for employees in 2014.[v]  In 2023, Illinois and California join these ranks.[vi]

The concept of bereavement leave in California is not a novel one, as it has been the subject of proposed legislation over the years and under different governors.[vii]  Such legislation was proposed in 2007 and again in 2010. The 2007 version would have provided all California employees with four days of bereavement leave, and the 2010 version proposed three days.[viii]  In both cases, Governor Arnold Schwarzenegger vetoed the legislation.[ix]  Then, in 2011, Governor Jerry Brown vetoed similar legislation and, most recently, AB 2999, a more robust bereavement leave measure, failed to make it out of committee.[x]

As there are no bereavement leave measures under federal law, a handful of states have enacted such measures. Oregon was the first state to provide bereavement leave for employees and is among only several states to have enacted such laws, which will now include Illinois and California.[xi]

The impetus for bereavement leave in California (and assuredly other states that will follow) was in no small measure society’s collective experience with COVID pandemic. In fact, Fortune recently addressed this very issue in the context of the pandemic: “More than a million people in the U.S. died of COVID over the past two years—and 6.4 million worldwide—it would seem natural that we take a second look at bereavement at work, too.”[xii]

For employers, California’s newly enacted bereavement leave law becomes the appropriate fodder for guidance and training in human resources departments and management alike, as well as for inclusion in updated employee handbooks.  Indeed, employers will be encouraged to establish policies and procedures associated with bereavement leave, including steps to ensure employees are aware of this mandated benefit.  And, as with any new law, there will be a keen awareness amongst plaintiff’s lawyers and watchdog groups to ensure there is compliance.  That said, many employers already have in place their own bereavement leave policies, which may provide enhanced leave benefits.  However, absent a collective bargaining agreement, employers must remain mindful of AB 1949 and ensure its own policies comport with its requirements.  As revealed by efforts over the past decade and a half, it is no surprise that bereavement leave now becomes part of the dynamic set of laws to be navigated by California employers.

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Sources

[i] Assembly Bill 1949, https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB1949.

[ii] Elizabeth N. Hall, Allison E. Czerniak, State Bereavement Laws and their Impact on Employers, The National Law Review, Vol. XII No. 203, (Jun. 22, 2022), https://www.natlawreview.com/article/state-bereavement-laws-and-their-impact-employers.

[iii] Assembly Bill 1949, supra note i.

[iv] Hall, supra note ii.

[v] Id.

[vi] Id.

[vii] Factorial HR, HR’s Guide to Bereavement Leave in California and Across the US, FactorialBlog, (Aug. 3, 2022), https://factorialhr.com/blog/bereavement-leave-in-california/#bereavement-leave-california-a-history.

[viii] Id.

[ix] Id.

[x] Id.

[xi] Hall, supra note ii.

[xii] Trey Williams. After more than 1 million Americans died from COVID, most companies still give just a few days of bereavement leave for ‘core’ family members. Fortune, 24 August 2022, https://fortune.com/2022/08/24/bereavement-policies-in-the-us-are-inadequate.