AB 1949 – Entitles Eligible Employees To Five Days Of Bereavement Leave Upon The Death Of A Family Member; Expands Small Employer Family Leave Mediation Pilot Program

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Public Education Matters
CLIENT TYPE: Public Education, Public Employers, Public Safety
DATE: Oct 19, 2022

AB 1949 amends the California Fair Employment and Housing Act (FEHA) to create a statutory right for eligible employees to take up to five days of bereavement leave upon the death of a covered family member.

AB 1949 applies to all public agencies and all other employers with five or more employees.  Employees are eligible for statutory bereavement leave if they have been employed for at least 30 days before the leave commences.  Bereavement leave may be taken for the death of a family member, which means a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. To be covered by the law, the bereavement leave must be completed within 3 months of the date of death, but need not be taken consecutively.

The new statutory leave works in conjunction with any existing bereavement leave policies an employer may have. Employers that have no bereavement leave policy, or a policy that provides less than five days, must provide no less than five days of leave.

However, AB 1949 does not require employers to provide paid bereavement leave. Employers with existing bereavement leave policies that provide employees less than five days of paid bereavement leave must continue to give employees the number of paid days employees are entitled to under the bereavement leave policies, but the rest of the five days may be unpaid. For employers that do not currently provide paid bereavement leave, all five days can be unpaid. In any event, employers must allow employees to use paid vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee during a period of unpaid bereavement leave.

Employers may require employees to provide documentation of the death of a family member within 30 days of the first day of the leave.  Documentation includes, but is not limited to, 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.  AB 1949 obligates employers to maintain the confidentiality of any employee requesting bereavement, as well as the documentation the employee provides, except to internal personnel or legal counsel, as necessary, or as required by law.

AB 1949 makes it an unlawful employment practice for an employer to refuse to hire or to discharge, demote, fine, suspend, expel, or discriminate against, an individual because of either of the following:

  1. An individual’s exercise of the right to bereavement leave; or
  2. An individual’s giving information or testimony as to their own bereavement leave, or another person’s bereavement leave, in an inquiry or proceeding related to the right to take bereavement leave.

AB 1949 also makes it an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, an employee’s right to take bereavement leave.

Bereavement leave under AB 1949 is separate and distinct from any right under the California Family Rights Act (CFRA).

AB 1949 does not apply to an employee who is covered by a valid collective bargaining agreement if the agreement expressly provides for bereavement leave equivalent to that required under AB 1949 and for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked, where applicable, and a regular hourly rate of pay for those employees of not less than 30 percent above the state minimum wage.

AB 1949 also requires the Civil Rights Department (CRD) to expand the small employer family leave mediation pilot program (“Pilot Program”) for alleged violations of specified family care and medical leave provisions, applicable to employers with between 5 and 19 employees, to include mediation for alleged violations of the new bereavement leave entitlement.  The Pilot Program is only in effect until January 1, 2024, and as of that date is repealed.

(AB 1949 amends Sections 12945.21 and 19859.3 of, and adds Section 12945.7 to, the Government Code.)

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