Employers are vital anchors of family stability and community solvency. In the aftermath of a child’s death, employers are often placed in a difficult position: They want to support the family, but also need to stay financially solvent. How much leave to offer and whom to offer it to remains a policy gap.
Employees who need time away from work to grieve and to cope with the death of a child have no legal right to take leave, with narrow exceptions in Illinois, Oregon and Washington. Bereavement is not an acceptable use of unpaid leave under the Family and Medical Leave Act, despite recent efforts to add it to the law. Many employers offer bereavement leave; however, the leave is often only a few days, which is not sufficient for most employees coping with a child’s death. A child’s death has broad and long-lasting effects on an employee’s health and well-being, with substantial impacts on productivity at work. Allowing employees adequate time to grieve their loss has benefits for both the employee and the employer. Bereavement policies can be structured in a variety of ways, and the size of an organization is likely to impact the type of policy that can be implemented.
The laws and private-employer policies surrounding bereavement leave vary widely. On the federal level, there is no legal right to leave after a child’s death. Only two states (Illinois and Oregon) and two cities (Tacoma and Seattle, Wash.) have enacted laws that explicitly give employees the right to bereavement leave. While a few large corporations recently have enacted new leave policies, most employers offer at best a few days leave for grieving parents.
The Family and Medical Leave Act of 1993 (FMLA) guarantees up to 12 weeks of unpaid time off for certain employees to take care of a new child or a family member who has a serious medical condition. In general, to be eligible, an employee must have worked for at least 1,250 hours over the previous 12 months for an employer that employs at least 50 people. The employee is entitled to 12 weeks of unpaid leave if:
The employee welcomes a new son or daughter through birth, adoption, or foster care
The employee needs time to care for a spouse, son or daughter, or parent with a serious health condition
The employee is unable to work because of his or her own serious health condition
There is a qualifying exigency arising out of the active duty of a spouse, child, or parent of the employee
While FMLA does not explicitly allow employees to use this time off to grieve the death of a child or family member, an employee might be able to use FMLA leave if he or she develops a serious health condition – such as depression – as a result of the death. However, FMLA does permit employees to take leave for the death of a family member who died while on active duty in the military. There have been calls to add bereavement to the list of covered reasons for FMLA leave; the Parental Bereavement Act (HR 983) has been introduced in Congress several times in recent years but has not yet gained traction.
Illinois and Oregon have laws that require employers to allow employees to take time off following the death of a child. In 2016, Illinois enacted the Child Bereavement Leave Act, which requires employers with 50 or more employees to provide up to 10 days of unpaid bereavement leave for a parent who has lost a child (leave cannot exceed or be in addition to FMLA leave). There are no restrictions on the age of the child. Employer and employee must meet the requirements of FMLA. Oregon has two laws that apply to bereavement leave. The Family Leave Act, enacted in 2014, requires employers with 25 or more employees to allow qualifying employees to take up to two weeks unpaid bereavement leave for the death of a family member. In addition, Oregon’s paid sick leave law requires nearly all employers in Oregon to provide up to 40 hours of sick leave each year, which can explicitly be used for bereavement. If the employer has at least 10 employees (or six in Portland), the leave must be paid, otherwise it is unpaid leave.
It is difficult to determine the landscape of employer policies about bereavement, because employers vary so widely and there is no exhaustive survey of employers. A 2018 survey, conducted by the Society for Human Resource Management (SHRM), found that 88% of employers offer general paid bereavement leave not limited only to child death. Sheryl Sandberg estimated in her book Option B that only 60 percent of private sector employees get paid time off for bereavement. A 2016 SHRM survey found that among employers who offered paid bereavement leave, employees were given an average of four days for the death of a spouse or child, and fewer days for the death of other family members. These numbers should be taken with a grain of salt, however. SHRM surveys its own membership and has a relatively low response rate, so the results may not be representative of the universe of employer policies.
While the overall employer landscape is difficult to discern, there are a few examples of companies that have fairly generous bereavement leave policies in comparison. In 2017, Facebook expanded its leave benefits to include up to 20 paid days off for the death of an immediate family member and up to 10 paid days off for the death of an extended family member. Mastercard followed suit, also offering up to 20 paid days for the death of a spouse, partner or child, up to 10 days for a parent, grandparent or sibling, and up to five days for other extended family. In December 2018, the Girl Scouts of Greater Iowa introduced a new suite of benefits for employees, including five days of bereavement leave for miscarriages.
Company Size Is A Key Factor
The availability and amount of leave for employees often depends on the size of the organization. A larger organization with many employees may be able to absorb the costs associated with giving an employee paid time off to grieve the death of a child. A smaller organization, with fewer employees and a smaller profit margin, may find it difficult or impossible to provide paid time off. There is no agreed-upon classification of employer sizes, but there are several ways to group employers by size. The Bureau of Labor Statistics uses multiple classification systems; the one we have chosen to use classifies employers into three groups:
Small employers: 1-49 employees
Mid-sized employers: 50-499 employees
Large employers: 500 or more employees
This classification works well when discussing bereavement policy because it aligns with the requirements of the FMLA. While FMLA does not include bereavement leave, it is relevant because it may be used by parents to take time off to care for sick children, or to take time off after a death if the parent develops a serious health condition.
The majority – nearly 95 percent – of businesses in the United States are small, with fewer than 50 employees. However, the majority of employees work for mid-size or large employers. In 2018, just under half (47 percent) of all employees worked for large employers, 25% of employees worked for mid-sized employers, and 28 percent worked for small employers.
What Employers Can Do
Employers should explore ways to ease the transition back to work for bereaved employees. For example, employers can connect employees with needed services (e.g. grief counselors), set up a foundation to channel contributions, or maintain an Employee Assistance Fund (funded by employees and/or employer) that can help workers with expenses related to the death. Employers can also offer flexible schedules and/or reduced hours for employees who are ready to return to work. Returning to work after a death can be difficult for the employee, the employer, and co-workers. There are many ways that employers can offer support during this time, including showing empathy, acknowledging that grief is ongoing, making specific offers to the employee (instead of a general “let me know if you need anything”), and taking cues from the employee.