Will Parental Bereavement Be Allowable Under the FMLA?
Author: Melissa Burdorf, XpertHR Legal Editor
On the 20th anniversary of the Family and Medical Leave Act (FMLA), Sen. Jon Tester (D-MT) and Rep. Steve Israel (D-NY) introduced the Parental Bereavement Act of 2013 (H.R. 515, S. 226), a bill that would amend the FMLA to provide leave to parents who are grieving because of the death of their son or daughter.
In a press release, both Tester and Israel announced their support and determination to push this bill through. Israel stated, "Parents should never have to decide between their job and taking the proper time needed for both themselves and the rest of their family to mourn the death of a child."
Currently, an eligible employee of a covered employer can take FMLA leave for the following six situations only:
- The employee's own serious health condition that leaves the employee unable to perform the essential functions of his or her job;
- To care for the employee's spouse, son, daughter or parent who is suffering from a serious health condition;
- To bond with a newborn biological child or a newly adopted or fostered child;
- The placement of a child with the employee for adoption or foster care;
- A military exigency in which the employee's spouse, son, daughter or parent is on active duty or called to active duty status, and the employee must take time off from work to make various practical arrangements; and
- When an employee is the spouse, son, daughter, parent or next of kin of a covered servicemember who has a serious illness or injury, and the employee is needed to care for the covered servicemember.
Similar to baby bonding leave, under this proposed bill, employees would not be allowed to take this leave on an intermittent or reduced leave schedule unless the employee and the employer agree otherwise.
Employers should note that while bereavement leave is currently not required by federal law, under certain circumstances, employees may be eligible for FMLA leave if:
- The employee is depressed because of a family member's death and that depression meets the FMLA's definition of a serious health condition;
- The employee is caring for a relative who has a serious physical or mental health condition as a result of the family member's death; or
- The employee needs to address issues arising from the death of a covered military member while on active duty status. This includes meeting and recovering the body and making funeral arrangements.
In addition, an employee may develop a physical or mental disability as a result of the employee's grief, which may qualify under the Americans with Disabilities Act (ADA).
Many employers voluntarily offer some amount of paid time off for employees to attend funerals, grieve and settle a family member's estate. A bereavement leave policy that addresses the time off that an employee may take upon the death of a family member can be invaluable during a stressful time and ease an employer's administrative duties.
Special note to New York employers - be careful when crafting a bereavement leave policy. In New York an employer cannot discriminate against employees in a same-sex committed relationship regarding bereavement leave. So, if an employer voluntarily offers bereavement leave for the death of a spouse or the spouse's child, parent or other relative, the employer must allow an employee to take the same leave for his or her same-sex committed partner (i.e., individuals who are financially and emotionally interdependent in a manner commonly presumed of spouses).
Additional Resources
Employee Leaves > Other Leaves > Bereavement Leave
How to Deal With Grieving Employees
Managing an Employee's Bereavement and Bereavement Leave - Supervisor Briefing