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Parental Bereavement Leave May Soon Be Part of FMLA

Published by on June 14, 2017

Employers covered by the FMLA may soon be required to provide qualifying employees with 12 weeks of unpaid leave for the death of the employee’s child.

Employers covered by the FMLA may soon be required to provide qualifying employees with 12 weeks of unpaid leave for the death of the employee’s child.

A bipartisan group of three Republicans and three Democrats in the House of Representatives are co-sponsoring the Parental Bereavement Act of 2017 (H.R. 1560), a bill that would amend the Family and Medical Leave Act (FMLA) to include bereavement leave for the death of a child. As it stands currently, the FMLA requires employers with 50 or more employees to provide 12 weeks of unpaid leave to covered employees for certain reasons. Employees qualify for FMLA leave after 12 months of service to the employer and must have performed at least 1,250 hours of work for the employer. Some of the covered reasons include an employee’s serious health condition, the birth of a child, and the care of a close family member with a serious health condition. Although many employers offer some form bereavement leave, such policies are not mandated by federal law. The bill’s proponents argue that parents who lose a child should not be forced to choose between keeping their jobs and taking time with their families following such a traumatic event.

Sen. Jon Tester (D-MT) has introduced an accompanying bill in the Senate (S.B. 528) and the bill has 12 Democratic and one independent co-sponsors. This is not the first time such a bill has been introduced. Tester, in tandem with other lawmakers, unsuccessfully introduced a similar bill at various times since 2011. The bill, also known as the Sarah Grace-Farley-Kluger Act, has been pushed by the Farley-Kluger Initiative, started by the Sarah Grace Foundation for Children with Cancer, Barry Kluger, and Kelly Farley, two grieving fathers who lost their children. After connecting with other grieving parents, they said they discovered the number of grieving parents who believed they were forced to go back to work only days after burying their children, causing them additional mental anguish. Nevertheless, lawmakers are optimistic about the prospects of the bill’s passage this year given the bipartisan support.

The proposed change would add “because of the death of a son or daughter” to the FMLA’s covered circumstances. The bill also includes a limitation that such leave may not be taken intermittently or on a reduced leave schedule unless the employee and employer agree otherwise. Furthermore, to the extent it is reasonable and practicable, employees would have to provide advanced notice to the employer. For spouses employed by the same employer, the total aggregate leave may be limited to 12 workweeks in a given 12 month period. The bill also provides that, if the Secretary of Labor promulgates a regulation requiring a certification, an employer may require certification as part of the employee’s leave request. The full bill text can be found here.

A few states have enacted laws requiring employers to provide bereavement leave. Oregon passed the first bereavement law in 2014 which requires employers to provide employees with two weeks of unpaid bereavement leave for the death of a family member. Additionally, in July 2016, Illinois passed a bereavement law that requires employers to provide employees who suffer the loss of a child with up to two weeks of unpaid leave.

Welter Insight

Employers should be aware that parental bereavement leave may soon be a qualifying event that allows covered employees to take 12 weeks of unpaid leave.

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