In March 2017, bills were introduced to the House and Senate that would include the death of a child as a qualifying event under the Family Medical Leave Act (“FMLA”). Parents who are eligible employees who work for qualified employers could take up to twelve (12) weeks of unpaid leave to mourn the loss of a child. In the meantime, there are few if any laws requiring employers to grant bereavement leave to employees, except under very limited circumstances. When is bereavement leave mandatory? What should you as an employer be aware of when deciding to grant bereavement leave?

When is Bereavement Leave Mandatory?

In Georgia, there is no law requiring employers to grant employees bereavement leave. While federal law generally does not require employers to grant bereavement leave, the FMLA has a narrow exception. Currently, under the FMLA, an eligible employee of a covered employer may take up to twelve (12) weeks of unpaid leave in a single twelve-month period for the following reasons:

• The birth of a child or the placement of a child with the employee for adoption or foster care;
• To care for a spouse, son, daughter, or parent with a serious health condition;
• The employee’s own serious health condition;
• Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty, or has been called to covered active duty status (or has been notified of an impending call or order to covered active duty).

A “qualifying exigency” includes allowing a covered employee whose spouse, son, daughter, or parent is a military member on covered active duty to take up to twelve weeks unpaid leave to address issues that arise from the death of that military member. This is the only place in the FMLA that would currently allow for bereavement leave.

In an effort to change this, in March, bills were introduced both in the House of Representatives and in the Senate that would amend the FMLA to include the death of a child as a qualifying life event.  This change would allow grieving parents, who are eligible employees of a covered employer, to take up to twelve weeks unpaid leave upon the death of a child without the additional worry of whether they are taking too much time off of work, a thought that many parents have to consider while coping with their devastating loss. However, these bills are still only under consideration.

Although the FMLA does not generally require bereavement leave, you should keep in mind that the effect of grief on an employee can cause physical conditions that would allow an employee to take leave under federal law. For example, an employee’s grief could result in depression that could qualify as a serious health condition under the FMLA, or in some instances, as a disability under the ADA. Therefore, employers should be cautious about disciplining or discharging employees who take time off because they are depressed as a result of the loss of a loved one and should consult legal counsel before taking any action.

Bereavement Leave Policies

Many employers provide some type of bereavement leave for grieving employees even if not legally required to do so. Because bereavement leave is generally not legally mandated, the amount of time granted and whether the leave is paid varies depending on the employer’s circumstances. If you would like assistance developing a policy or have any questions regarding what was discussed in this article, please give us a call. As always, we’re happy to help.