Hunton Employment & Labor Perspectives

California’s new bereavement leave law, which became effective beginning January 1, 2023, requires most employers to allow their employees to take up to five days of leave upon the death of certain family members.  Although previous bills providing for bereavement leave had been stymied by vetoes, Governor Gavin Newsom signed the new legislation—Assembly Bill (“AB”) 1949—into law as an “important step” to ensure that low-wage workers “can access the time off they’ve earned while still providing for their family.”  The new law makes California one of the few states requiring employers to provide bereavement leave.

The law amends the California Family Rights Act (“CFRA”) to provide additional and separate leave from that already offered to employees for serious illness or to provide care for others with serious illness.  The law applies to employers with five or more employees, and employees who have been employed at least 30 days prior to the commencement of leave.  A qualifying family member includes a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law.  An employee may take the five days of bereavement leave consecutively or intermittently.  However, the leave must be completed within three months of the date of death of the family member.  There is no annual cap on the number of days an employee is able to take leave pursuant to the law, meaning an employee can take up to five days of bereavement leave per occurrence. 

An employer may require an employee to provide documentation of the death of the family member and request this information “within 30 days of the first day of the leave.” Examples of acceptable documentation include “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.”

The law also requires that employees use bereavement leave pursuant to an employer’s bereavement leave policy, if one exists.  If no policy exists, the five days of leave may be unpaid, but the employee may use vacation, personal leave, accrued and available sick leave, or compensatory paid time off to which they are otherwise entitled during the bereavement leave.  If an existing leave policy provides for less than five days leave or unpaid leave, the employee is still permitted to use accrued paid leave in place of unpaid leave.

The law contains an exemption for employees subject to a collective bargaining agreement when that agreement provides for bereavement leave equivalent to the requirements under the new law; the wages, hours of work, and working conditions of the employees; premium wage rates for all overtime hours worked; and a regular hourly rate of pay for those employees that is at least 30 percent above the state minimum wage. Finally, employers are prohibited from refusing to hire, discharging, demoting, fining, suspending, expelling, or discriminating against an employee for exercising the right to bereavement leave.  Employers should review the law for complete information on employees’ entitlement to bereavement leave to ensure compliance and consider implementing or updating current policies.