What is AB 1949?
Beginning January 1, 2023, employers may not refuse to grant a request from an employee to take bereavement leave upon the death of a family member.
On September 29, 2022, Governor Newsom signed AB 1949, creating a new law codified under Government Code Section 12945.7 that requires CA employers with five or more employees to give eligible employees up to five days of unpaid bereavement leave following the death of a family member.
Who is an Eligible Employee and Who is a “Family Member”?
An employee is eligible for bereavement leave if they have been employed for at least 30 days by the employer before taking the leave. AB 1949 defines “family member” to mean a spouse or a child, parent, sibling grandparent, grandchild, domestic partner, or parent-in-law.
How Are Employers Expected to Provide Bereavement Leave?
Employers are required to provide the leave whenever an employee requests it. An employee has three months from the date of death of an employee’s family member to use the leave. However, employees do not need to take the days of bereavement leave consecutively; For example, if an employee requests to use a portion of the bereavement leave the first month and the remaining days on the second or third month, employers may not deny the request. Ultimately, this means employers can expect employees to be absent for a full work week or to be working multiple shortened weeks within the three month period.
If an employer has an existing bereavement leave policy (i.e., providing paid time off for bereavement leave) the bereavement leave shall be taken pursuant to such policy. If there is no bereavement leave policy in place, employers are not required by the new law to provide paid leave, but must allow employees to use vacation, personal leave, accrued and available sick leave, or compensatory time off that the employee is otherwise entitled to.
Moreover, it is not specified whether there is a limit to employee requests for bereavement leave. Until there is further clarification, it appears that employees may be able to request bereavement leave for each passing of a family member. This further begs the question as to what extent employers are required by law to provide leave should an employee experience the passing of multiple family members in a single or frequent occurrence.
What Can Employers Do If They Receive a Request for Leave?
To protect against potential exploitation of the new bereavement law, employers may request that the employee provide documentation of the death of a family member such as a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, religious institution, or governmental agency. If an employe requests this, employees must provide documentation within 30 days of the first day of leave. (fn 12945.7(f))
However, employers must maintain confidentiality of any such documents and may not disclose them to anyone except internal personnel, counsel, or as required by law.
What Should Employers Avoid?
As with other employee protection laws, the bill provides an employer may not retaliate against an employee for exercising their right to bereavement leave or providing testimony regarding their own bereavement leave or another person’s in an inquiry or proceeding related to rights guaranteed under AB 1949. Additionally, it will be unlawful to refuse to hire, discharge, demote, fine, suspend or otherwise take adverse employment actions against an employee for requesting such leave.
Martin Law will continue to monitor the development of this new bereavement law as they go into effect.
If you have any questions about reviewing an existing bereavement leave policy, setting up a new bereavement leave policy, or discussing the steps to take after receiving a bereavement leave complaint, the attorneys at Martin Law are available to help you navigate this process.