With the passage of AB 1949, California joins a short but growing list of states that now mandate bereavement leave.  AB 1949 amends the California Family Rights Act (“CFRA”), and starting January 1, 2023, employers will be required to provide eligible employees up to five days of unpaid bereavement leave upon the death of a family member.  “Family member” includes a child, parent, grandparent, grandchild, sibling, spouse, parent-in-law or domestic partner.

The new law applies to employers that have five or more employees and to employees who have worked at least 30 days prior to the commencement of their leave.  The leave does not need to be taken consecutively, so long as it is completed within three months of the date of the family member’s death.  Employers may request documentation such as a death certificate or a published obituary.  Any bereavement leave must be taken under the employer’s existing bereavement leave policy.  If the policy provides for less than five days of paid leave, the employee may take additional days of unpaid leave or use his or her available paid leave balances for a total of five days of bereavement leave. 

Bereavement leave under AB 1949 is an additional form of protected leave, separate from other CFRA leave such as leave to care for a family member’s serious illness.  Employers must not discriminate or retaliate against an employee for taking bereavement leave or for giving testimony as to his own or another person’s bereavement leave.  Furthermore, employers may not interfere with, restrain or deny the exercise of any right to bereavement leave.  Finally, employers must maintain employee confidentiality relating to the bereavement leave.   Employees may report any violations under AB 1949 to the California Civil Rights Department.

AB 1949 does not apply to employees covered by a valid collective bargaining agreement if the CBA: (1) provides bereavement leave equal to that required by AB 1949; (2) covers wages, hours of work and working conditions; (3) provides premium wage rates for overtime hours; and (4) pays covered employees at least 30 percent above the California minimum wage.

Employers should review their current employee handbooks and policies to ensure they are in compliance with California’s new bereavement law.