Companies should take care in creating a bereavement leave policy

Business News | 21 May, 2019 |

In the past few months, updating or creating employee handbooks for various sized businesses has been a weekly, if not daily occurrence for me. During this time, I find myself answering several questions about bereavement leave. Most often, employers ask whether Arizona law requires employers to offer paid bereavement leave. It doesn’t (but see below). When answering this question, I often find that my response also includes the benefits of offering bereavement leave. These benefits become apparent when confronted with a grieving employee if the situation is handled with empathy and compassion. And, the detriment to the employer who does not properly respond to an employee grieving from their loss is apparent. If bereavement leave is offered, a well-designed policy should be implemented so employees can know what to expect from the company in their time of loss.

What is bereavement leave?

Bereavement leave is leave taken by an employee due to the death of a loved one, generally a close family member. The leave is taken to allow the employee to grieve the loss, make funeral arrangements, attend a funeral, and/or attend to other immediate post-death matters.  Bereavement leave is a generally low-cost employee benefit that can go a long way in supporting employees, especially in a time when they need it the most.

Does Arizona law require employers to offer bereavement leave?

Jodi R. Bohr, an attorney with Gallagher & Kennedy, P.A., practices employment and labor law, with an emphasis on litigation, class actions, and HR matters.

Arizona does not have a specific bereavement leave law for private sector employers. Therefore, Arizona employers are not required to specifically offer or designate a certain amount of bereavement leave (paid or otherwise) for employees. The Arizona Fair Wages & Healthy Families Act (the “Act”) (aka paid sick time statute), however, may be implicated when an employee is grieving the loss of a loved one. The loss of a family member may give rise to a qualifying condition for the use of earned paid sick time (such as a mental or physical illness, injury, or health condition of the employee). Employers who do not offer paid bereavement leave must keep in mind the potential obligation to allow employees to take paid sick time for this purpose.

Should employers offer paid bereavement leave?

Approximately 94% of U.S. employers offer paid bereavement leave through a separate policy or as part of a paid time off or paid sick time plan. Paid bereavement leave can promote a productive workplace because it provides employees with time to grieve and recover from their losses. It can also promote loyalty, as paid bereavement leave for employees shows empathy and compassion in their time of need.

Why do some argue against bereavement leave?

People grieve differently, so creating a bereavement leave policy is more complex than other leave policies prepared by employers. The policy must consider when employees are eligible and how long they should be allowed to take time off to mourn. But, how is this decision made?

Some begrudge offering more leave, citing that there are too many leave opportunities already available for employees. They cite lost productivity in support of their position that employees should not be granted additional leave. But how productive is a person mourning the recent loss of a loved one? Chances are, the productivity level will be about the same whether the employee is at work or on leave. The difference will be in the sense of loyalty the employee has when his or her request for leave is handled with kindness.

What should be included in my bereavement leave policy?

Having a comprehensive bereavement leave policy removes the guessing game on how employees go about requesting leave in their time of need. A well-written policy will manage employees’ expectations and assist employers in responding to employee leave requests when the time arises.

Define the relationship required to be eligible for leave. Bereavement leave policies should address for whom employees can use leave. Employers might limit the leave to immediate family members (e.g., parents, siblings, spouses, and children). Or the leave use can be expanded to include extended family (e.g., aunts, uncles, and grandparents). 

Provide the amount of available leave. The amount of time off offered for bereavement leave can be the same for all employees regardless of the circumstances. Or, the policies can provide varying amounts of time off depending on the employee’s relationship to the deceased family member. More time off may be offered for immediate family (e.g., 3 days), while shorter leave (e.g., 1 day) may be offered for extended family to attend the funeral. A policy may also want to address whether even more leave is offered (e.g., 5 days) based on whether out of state travel is involved. The trend is to move toward offering longer leave periods; of course, employees don’t have to take all the available leave. If the policy is to offer different leave time under different circumstances, the company should document the amount of leave given and the reason behind the decision to grant that length of leave.

Will the leave be paid?  Policies should also cover whether the bereavement leave will be paid or unpaid. And, if unpaid, whether employees can elect to use other available paid leave (vacation) in lieu of unpaid leave. As noted above, almost all US employers offer some form of paid bereavement leave. Of those, approximately 83% offer a separate plan for paid leave (i.e., not part of paid time off or paid sick time). The trend is moving toward offering paid bereavement leave, increasing 11% in the past year in the most recent available statistics. Employers who want to offer longer leave, but can’t afford extended paid leave, may choose to offer paid leave for a few days, and unpaid extended leave.

Other miscellaneous policy considerations. Employers should outline their expectations as to how they want employees to notify them that they want to use bereavement leave. It can be as simple as following your other leave or attendance policies. If proof of leave will be requested, the policy should make clear the acceptable forms of proof (e.g., obituary, funeral program, etc.).  Or, rather than requiring documentary proof, you may ask the employee for details (e.g., name, date of death, city of death, and relationship) and verify the information. 

If the company is willing to grant special leave requests depending on the circumstances, the policy should explain how an employee can go about making a special request. If the application of bereavement leave is not flexible, the policy should be clear that the company will not make exceptions for special or unique circumstances. Being clear in the policy will help manage employee expectations and avoid requests that will inevitably be denied.

In closing

While employers are not required to offer bereavement leave, offering bereavement leave to employees helps them feel supported while trying to cope with their loss. Keep in mind there is no one-size-fits-all approach to bereavement leave.    

This information is intended to motivate you to take the next steps of drafting or revising your bereavement leave to one that fits your company best. Remember, people grieve differently, so a flexible policy may be the way to go to address the various coping needs of employees. And, employees should be allowed to choose whether to take the bereavement leave to mourn or return to work and get back to their routine quickly.

 

Jodi R. Bohr, an attorney with Gallagher & Kennedy, P.A., practices employment and labor law, with an emphasis on litigation, class actions, and HR matters, and is a frequent speaker on a wide range of employment law topics. She may be reached at jodi.bohr@gknet.com or 602-530-8035

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