Grief and bereavement leave are complex issues for many employers. Employers may have defined bereavement policies of 3 to 5 days for leave while the fallout from the death of a loved one can rarely be encapsulated in a relatively short time frame.

Employers may also have the added issue of employees who had substantive pre-death leave due to illness, injury, or other circumstances and have been struggling to fill the missing employee’s role well before bereavement leave is at issue. Some employers are concerned about misuse of generous leave policies with the same family member being reported by the employee as having died multiple times. There is no simple or easy workplace answer to these issues, but employers do need to focus on various laws when crafting a policy appropriate for their corporate culture.

Defined Bereavement Leave

Defined bereavement leave is a specific set of days set aside as leave. This may be created by policy, or in some instances, state or local law. Many policies include some form of proof of bereavement, such as an obituary or legal death notice. Note that there is a big difference between requesting a death certificate, which is not going to be readily available to most bereaved, and a legal notice such as a posting in the paper. Such information is further complicated by digital and social media platforms, and it can be hard to judge if a social media notice is real. “Proof” is not always useful, and employers need to assess how intrusive a request is versus its actual business value.

Another issue to address is intermittent leave. If you have a defined policy, can the five days be taken over the course of the time, such as a funeral, and then later a memorial, as has been common during COVID, or does the leave need to be taken all at one time?

FMLA

If you are an employer of 50 or more the FMLA may apply to bereavement leave issues. First, there may be time off for the care of an ill spouse or child and later for the employee’s own mental health condition related to their grief. All standard requirements of the FMLA would apply, but the FMLA is narrow in its definition of family: spouse, child, and parent. - It does not encompass in-laws or extended family except in very limited circumstances such as in loco parentis. An employee who does not have an individual health condition might not be covered under FMLA to provide care and support for their aunt who just lost her husband.

ADA/ADAAA

Unlike the FMLA, the ADA/ADAAA is not structured to allow an employee to provide support for others. It is intended to address the employee’s individual disability issues through an interactive process and reasonable accommodation. The ADA/ADAAA and state disability laws are generally applicable solely when the employee has a personal issue. One concern under the ADA/ADAAA is How much leave is enough? Open-ended leave as an accommodation is very problematic, with some courts, where uncertain and open-ended leave is not a reasonable considered accommodation.

Open-Ended Leave

In workforces that culturally demand flexibility, open-ended leave, or no-limit PTO has become more common. However, no limit doesn’t really mean there are no limits in most workplaces. Due to the proliferation of these policies, there has been an increasing number of terminated employees who have raised the policy as a defense when terminated for being absent or falling behind in work. In many ways, this type of policy requires closer assessment and monitoring than a capped leave process. You need to assess if the job is getting done, monitor the distribution of leave amongst the whole team for fairness, and engage in a process to determine if leave use is acceptable or if other accommodations need to occur. Further concrete performance monitoring is necessary. If you can’t define success, you can’t define failure.

Many employees may feel the effect of grief but deny it’s affecting their lives or performance. One place this can be seen is in open-ended policies, particularly in highly competitive environments, where employees rarely take time off. “No one else takes PTO,” may be a common refrain with employees in this situation. For those who have issues where grief may have affected performance, employers can open the door to a discussion, “What do you need to be successful?” or “Here is the information for an employee assistance program - remember these are confidential,” but you can’t, in most cases, make someone acknowledge they need leave.

In some limited instances, an employer can require an absence, but this is a legally complex area and you should seek assistance from legal counsel when following this approach.

The Big Picture

As noted in a recent Wall Street Journal article, “Giving Workers More Time to Grieve in an Era of Loss,” employers may need to think more broadly about grief and its impact on employees’ wellbeing. For some companies that may mean open-ended and paid leave policies. For others, it may be a more detailed and individualized accommodation discussion. Employee resources, like mental health support, need to be part of the discussion as well.

Grief springs from a wide array of events from the loss of a pet to the death of a parent or a miscarriage in pregnancy, and policies need to account for the potential mental health issues grief may create regardless of cause. Many states have some form of paid leave in this circumstance and federal legislative changes are being discussed, such as changes to FMLA, but in an age of uncertainty for employees, flexibility is critical in this assessment.