Time Off to Grieve: California’s Bereavement Requirements

Our subject matter experts take a lot of calls on a variety of HR topics. Here is one we commonly receive from employers:

Q: We have had a few bereavement leave requests recently and need HR guidance. Our employee Danika recently lost her grandmother and asked about her right to take time off. Is Danika entitled to leave time, and is it paid?

We have another employee, Todd, who said his wife just experienced a miscarriage and he wants time off to grieve. Is he entitled to leave time and can we request medical certification for the miscarriage?

A: Both Danika and Todd may be entitled to up to 5 days of unpaid bereavement leave. They can use any available vacation, PTO, sick leave benefits, or paid time provided under your bereavement leave policies. For reproductive loss leave in Todd’s case, you should not request medical certification. Keep reading to get the full scoop on when you should or should not ask for certification!

Bereavement Leave for Family Member Deaths

Let’s start with Danika, who asked about bereavement leave after the death of her grandmother.

Covered Employers & Eligibility

If you are a private employer with five or more employees (or a public employer of any size), you are required to offer bereavement leave in California. For Danika to be eligible to take bereavement leave, she must have been employed by you for at least 30 days before the start of her leave.

Covered Family Members

The law provides Danika up to five days of unpaid leave for the death of a covered family member. Covered family members include a spouse, domestic partner, child, parent, parent-in-law, sibling, grandparent, and grandchild.

Bereavement Leave Policies

While the law requires unpaid leave time, you should refer to your handbook to see if your company chooses to provide paid time off for bereavement and how much. Even if you don’t provide paid time, employees can still choose to use any available vacation, sick, PTO, etc. to turn their bereavement leave into a paid or partially-paid leave.

You may require that Danika use the leave within three months of the date of the death—be sure to cover this issue in your handbook policy. Employees can, but do not have to, take their leave days consecutively. This means Danika can choose to take all five days at once or break up the days over a longer period.

Note that the right to bereavement leave is per death. This means that if Danika experiences the loss of another covered family member, that will trigger another five days of time off.

Certification

If requested, you can require Danika to provide documentation of the death within 30 days of the first day of leave. Acceptable documentation includes, but is not limited to, 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 governmental agency.

Employer Obligations

The leave, and any documentation the employee provides, must be maintained as confidential and cannot be disclosed, except to internal personnel or counsel, as necessary, or as required by law. Employers may not refuse to hire, or to discharge, demote, fine, suspend, expel, or discriminate against, an individual in connection with bereavement leave rights.

Reproductive Loss Bereavement Leave

Now let’s turn to Todd, who requested time off to grieve after his wife’s miscarriage. California employers with five or more employees (or public employers of any size) are required to offer up to five days of unpaid reproductive loss bereavement leave, which has very similar requirements to bereavement for family member deaths. Again, employees are eligible if they have been employed for at least 30 days with you.

Covered Events

A reproductive loss event is defined as any of the following:

• Miscarriage
• Stillbirth
• Failed adoption—for example, if a birth mother or legal guardian breaches or dissolves an adoption agreement, or if an adoption is not finalized for another reason
• Failed surrogacy—for example, if a surrogate breaches or dissolves a surrogacy agreement, or if an embryo transfer fails
• Unsuccessful assisted reproduction—for example, a failed intrauterine insemination or embryo transfer

You might be wondering if Todd is entitled to time off, even though it was his wife who experienced the miscarriage. The answer is yes. An employee can take leave following their own reproductive loss event or that of another person (such as their spouse or partner) if the employee would have been the parent of the child born or adopted.

Similarities with Family Member Deaths

There are many similarities between reproductive loss and family-member-death bereavement leaves. The following requirements also apply to reproductive loss leave:

• Although the leave is unpaid by default, employees may elect to use vacation, personal leave, accrued and available sick leave.
• Employees do not have to take the leave time all at once.
• In most cases, an employee may be required to use the leave within three months of the date of the event.
• Employers must maintain confidentiality for the leave and ensure there is no retaliation.

Reproductive Loss Bereavement Differences 

Some notable differences with reproductive loss leave include:

• While there is no limit on the number of times an eligible employee may take bereavement leave, for reproductive loss events, an employer may limit the employee to 20 days in a 12-month period—be sure to note this in your policy!
• The law does not require an employee to submit documentation in support of reproductive loss leave. In Todd’s case, you should not request documentation in support of his leave. (If you believe an employee is fabricating the need for reproductive loss bereavement leave, it is best to consult legal counsel.)

Interaction with Other Leaves

Employers should keep in mind that other leaves of absence rights may apply depending on the circumstances, such as Pregnancy Disability Leave or CFRA/FMLA. There are circumstances when an employee may have more time to use bereavement or reproductive loss leave, such as when they are already out or choose to go out on another protected leave first. In qualifying circumstances, an employee may use bereavement leave within three months upon return from their other protected leave.

If you need help with tricky leave of absence questions or drafting compliant handbook policies, CEA is here to assist you. Reach out to us at 800-399-5331.