Bereavement Leave: What It Means for Employers

What it means in practice

In an HR context, "bereavement" means the period of grief after the death of someone close, and "bereavement leave" is the time off that covers it. The rules that matter are whose death qualifies, how many days are allowed, whether they are paid, when they must be used and what proof may be requested. For most private employers the answers come from their own policy, but some states set minimums, and federal agencies follow separate rules for their own employees.

The federal baseline. No federal statute requires a private-sector employer to provide bereavement leave. The Department of Labor's funeral leave page says the Fair Labor Standards Act (FLSA) does not require payment for time not worked, including attending a funeral, and that this type of benefit is generally a matter of agreement between an employer and an employee or the employee's representative. The Department's FLSA FAQ makes the same point about vacations, sick leave and holidays. Bereavement pay is therefore usually one part of an employer's broader paid time off (PTO) program, and the employer's written policy, often in the employee handbook, defines it.

How the FMLA fits. The Family and Medical Leave Act (FMLA) gives eligible employees up to 12 workweeks of leave in a 12-month period for listed reasons: the birth of a child and bonding, placement for adoption or foster care, care for a spouse, child or parent with a serious health condition, the employee's own serious health condition, and qualifying exigencies tied to a family member's military service. Bereavement is not on that list, and the Oregon Bureau of Labor and Industries says plainly that the FMLA does not cover bereavement. Two overlaps exist. First, a serious health condition can be a physical or mental condition involving inpatient care or continuing treatment by a health care provider, and the regulations say mental illness may be a serious health condition, but only if all the conditions of the definition are met (29 CFR 825.113). Second, one of the qualifying exigencies for the family of a military member is leave to address issues that arise from the death of the military member while on covered active duty, such as meeting and recovering the body, making funeral arrangements and attending funeral services (29 CFR 825.126(b)(7)(ii)).

Pay and overtime. When an employer does pay for bereavement time, the FLSA overtime rules treat it as pay for an idle period. Payments for occasional absences due to vacation, holiday, illness or "other similar cause," in amounts roughly equal to normal earnings, may be excluded from the regular rate, and no part of them may be credited toward overtime due. The regulation lists attending a funeral as an example of a similar cause (29 CFR 778.218). For how the regular rate works, see overtime.

Exempt employees and salary deductions. Unpaid bereavement days raise a separate question for exempt employees. The salary basis rule says an exempt employee must receive the full salary for any week in which the employee performs any work, and need not be paid for a workweek with no work. One exception allows deductions when an exempt employee is absent for one or more full days for personal reasons other than sickness or disability; the regulation does not name bereavement specifically. If the employee is absent a day and a half for personal reasons, only the full day may be deducted. A proportional deduction is also allowed for unpaid FMLA leave (29 CFR 541.602(b)(1) and (b)(7)).

Example: an exempt employee's deduction. As an illustration, an exempt employee paid $1,000 a week on a five-day schedule is absent two and a half days in one week for a relative's funeral, has no paid leave left, and the absence is not FMLA leave. Using the daily equivalent the regulation permits (29 CFR 541.602(c)), the daily rate is $200. The employer may deduct for the two full days, $400, but not the half day, so the employee receives $600 for the week.

Where states differ: California. States are the main source of mandatory bereavement leave, and their rules differ. These three are examples, not a complete list. The California Civil Rights Department FAQ on Government Code 12945.7, effective January 1, 2023, says private employers with five or more employees must grant an eligible employee's request for up to five days of bereavement leave after the death of a spouse, child, parent, sibling, grandparent, grandchild, domestic partner or parent-in-law. The employee must have been employed at least 30 days. The days need not be consecutive but must be completed within three months of the death. The law does not require pay, but if the employee has available sick leave, vacation, personal leave or other paid leave, the employer must allow its use. If the employer requests documentation, the employee must provide it within 30 days of the first day of leave, and the employer must keep it confidential. Retaliation for requesting or using the leave is unlawful; see retaliation. California separately provides up to five days of leave after a reproductive loss, such as a miscarriage or stillbirth, with up to 20 days in a one-year period (Gov. Code 12945.6). See California labor laws for other state rules.

Where states differ: Illinois. The Illinois Department of Labor says the Family Bereavement Leave Act, which replaced the Child Bereavement Leave Act on January 1, 2023, applies to all employers covered by the federal FMLA, which it describes as all public employers and private employers with 50 or more employees. An employee is eligible after at least 12 months of employment and 1,250 hours of service in the prior 12 months. Eligible employees may take up to 2 weeks (10 workdays) of unpaid leave to grieve, attend a funeral or alternative, or make arrangements after the death of a child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent or stepparent. The Act also covers stillbirth, miscarriage, an unsuccessful reproductive procedure, a failed adoption match or surrogacy agreement, and a diagnosis that negatively affects pregnancy or fertility. Leave must be completed within 60 days after the employee receives notice of the event, with at least 48 hours' notice unless that is not reasonable and practicable. The FAQ says the death of an aunt or niece does not qualify. FBLA leave may not exceed the unpaid leave allowed under the FMLA.

Where states differ: Oregon. The Oregon Bureau of Labor and Industries says the Oregon Family Leave Act (OFLA) applies to employers with at least 25 employees and to employees who have worked an average of 25 hours per week for 180 days. Bereavement leave is available within 60 days after the employee learns of the death of a family member, is limited to two weeks per family member and may not exceed four weeks in a leave year, within the 12 weeks OFLA allows for sick child leave and bereavement combined. Family member is defined broadly, from spouses, children, parents, siblings, grandparents and grandchildren (and their spouses or partners) to any individual related by blood or affinity whose close association is the equivalent of a family relationship. OFLA leave is unpaid unless paid leave is applied. For unforeseen leave, employers may require oral notice within 24 hours after leave begins and written notice within three days of return.

Example: two deaths in one Oregon leave year. An OFLA-eligible employee loses a grandparent in March and a sibling in August of the same leave year. Under the BOLI limits, the employee may take up to two weeks for each death, four weeks in all, which reaches the four-week annual maximum. A third death later that leave year would not add more OFLA bereavement time, although an employer policy could offer more.

Example: paid policy days in Illinois. The Illinois FAQ gives this example: an employer provides 3 paid days of bereavement leave and the employee chooses to substitute them for 3 FBLA days, leaving 7 unpaid FBLA days. The employer cannot require the employee to use paid leave to cover the 10 unpaid days. The FAQ also says an employee who has used 10 weeks of FMLA and 2 weeks of FBLA leave in a 12-month period is not entitled to more FBLA leave for another event, because that would exceed the 12 weeks of unpaid leave the FMLA protects.

Federal employees. The federal workforce has its own rules, administered by agencies under OPM guidance; they do not apply to private employers. OPM says a federal employee may use up to 104 hours (13 days) of sick leave each leave year for family care and bereavement, including making arrangements required by a family member's death and attending the funeral. An employee is entitled to up to 3 workdays of funeral leave for an immediate relative who died as a result of wounds, disease or injury incurred while serving in a combat zone (5 U.S.C. 6326). Under 5 U.S.C. 6329d, added by the National Defense Authorization Act for Fiscal Year 2022 and effective December 27, 2021, an eligible employee is entitled to 2 workweeks of paid parental bereavement leave in connection with the death of a qualifying son or daughter, used within the 12-month period that follows the death. OPM's guidance says this leave is separate from sick leave and is not FMLA leave.

Building a bereavement policy. A state minimum sets a floor beneath an employer's own policy. California's CRD FAQ says employees must follow the employer's existing procedures, such as notifying HR, but a policy granting fewer than five days still leaves the employee entitled to five. Tracking how the days are used is part of absence management.

Recordkeeping. If an absence is designated as FMLA leave, the FMLA regulations require records of the dates of leave, the hours of any partial-day leave, written notices and employer leave policies, kept at least three years; leave designated as FMLA leave may not include state-law leave that is not also FMLA-covered (29 CFR 825.500). Some states add confidentiality rules for death certificates and similar documents, as California does.

Questions employers ask. Is bereavement leave required by federal law? Not for private employers; the Department of Labor treats it as a matter of agreement. Does bereavement leave count against FMLA leave? Not in itself, since bereavement is not an FMLA reason, unless the absence also qualifies, for example as the employee's own serious health condition. In Illinois, FBLA leave cannot exceed the FMLA's 12-week limit. Can an employer ask for proof of death? State law may set the terms: California allows a request for documentation such as a death certificate or obituary, due within 30 days, and Illinois allows reasonable documentation but not a requirement to say which pregnancy-related or adoption-related event occurred. Is a miscarriage covered? Under Illinois FBLA and California's separate reproductive loss leave, yes; federal law does not address it as bereavement.

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