AB 1949 – Bereavement Leave – New for smaller employers

“On October 3, 2022, Assembly Bill Number 1949 passed requiring employers with five or more employees to grant bereavement leave up to five days upon the death of a family member. California is the third state to mandate this time off. We explain the details below.

·         Who must provide this leave? A person who employs five or more persons to perform services for a wage or salary must now provide five (5) days of unpaid bereavement leave. The state, cities and counties are included in the definition of employer; however, certain permanent employees of the state are granted three days of paid bereavement leave and two days of unpaid bereavement leave (or as a charge against any accrued sick leave credit).

·         Who is eligible for this leave? An employee who has been employed by the employer for at least 30 days prior to the commencement of the leave who lost a “family member” is eligible for this leave. A “family member” is defined as a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law (parent of a spouse or domestic partner). This new law does not apply to an employee who is covered by a valid collective bargaining agreement (“CBA”) if the CBA provides for (1) an equivalent leave, and (2) 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% of above the California minimum wage.

·         When does the leave have to be taken?  The bereavement leave, up to five days shall be completed within three months of the date of the death of the family member. The days of the bereavement leave need not be consecutive. An employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee for the bereavement leave. The eligible employee will be entitled to the full five days of requested leave even if the employer’s current policy says otherwise.

·         Does the person have to provide any documentation to invoke the leave? Yes, but only if requested by the employer. If requested by the employer, the employee shall provide documentation of the death of the family member within 30 days of the first day of the leave. Acceptable documentation shall include a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency. The employer shall maintain confidentiality of an employee requesting a bereavement leave, and any documentation provided to support such a leave shall be maintained as confidential and not disclosed except to internal personnel or counsel, or if required by law.

·         When is this law violated and what happens if this law is violated? It shall be an unlawful employment practice for an employer to (1) refuse to hire, or discharge, demote, fine, suspend, expel or discriminate against an individual because of (a) an individual’s exercise of the right to bereavement leave, or (b) an individual’s giving information or testimony as to their own or another person’s bereavement leave, in an inquiry or proceeding related to the rights under this new leave, or (2) interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right under this new bereavement law. Violating this new law may entitle a person to past and future lost income and benefits, emotional distress damages, and punitive damages.

·         What do employers need to do now? Covered employers need to update their policies and/or employee handbooks to include this new benefit and train their management on its application”.

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