Overview of Bereavement Leave in PA
The notion of bereavement leave is an important one for many reasons. For employees who have experienced a death in the family and understandably must deal with grief and/or time away from work, it is imperative that they are aware of their rights in the workplace and, conversely, whether there are obligations on the part of their employer. Although not all employers have policies related to bereavement leave, such policies may be developed. Such policies, like all workplace policies, must comply with applicable laws and should be drafted carefully so as to avoid problems under the law down the road.
As a preliminary matter, it is common for an employee to take at least some time off following the death of a loved one, even if leave is unpaid. It is also common for both employers and employees to recognize that it will be necessary for the employee to obtain at least some form of bereavement leave. Welfare benefit plans, such as those governed by the Employee Retirement Income Security Act (ERISA), sometimes allow death benefits . A policy governing such plans may allow an employee to take bereavement leave or otherwise recognize the time away from work. Other times, employer handbook policies govern the availability of bereavement leave, which may be paid or unpaid depending on the terms of the policy.
Barring an employer policy or a benefit plan providing bereavement leave, there is no requirement under federal law that employers provide bereavement leave or pay. Similarly, Pennsylvania law does not mandate that bereavement leave or pay be provided to employees. The Pennsylvania Wage Payment and Collection Law does not require employers to compensate employees for their time away from work, as in the case of unpaid bereavement leave. In addition, the Family and Medical Leave Act (FMLA) does not require employers to provide bereavement leave. In instances where leave is taken, the FMLA does not obligate employers to pay wages during that time.
Existing Laws Regarding Bereavement Leave
Currently, there is no state or federal law requiring any Pennsylvania employer to provide paid or unpaid bereavement leave. Federal law does not provide employees with the right to take time off for bereavement specifically, but federal FMLA does grant eligible employees the right to take up to 12 weeks of unpaid leave in a 12-month period for the birth and care of a child, the adoption or foster placement of a child, or the care of a child, spouse, or parent with a serious health condition. Pennsylvania law does not currently provide for job protection or leave, and does not prohibit employers from firing employees who take time off due to bereavement. Because Pennsylvania has no laws mandating the provision of bereavement leave in the private sector, employers are free to develop and implement their own leave policies.
Employer Policies Regarding Bereavement Leave
In Pennsylvania, each employer has the authority to establish its own particular policies with regard to bereavement leave. Commonly, employers provide a limited amount of time off for employees like a specific number of days following the death of an employee’s loved one. Typical bereavement leave policies restrict the leave to family members such as a spouse, parent, or child.
Other employers may not have a formal bereavement leave policy of their own and allow employees to use vacation or PTO time for bereavement leave. Some employers may also provide unpaid time off to employees grieving a loved one’s death or to employees attending a loved one’s funeral. It is always advisable that employers spell out, in writing, their bereavement leave policies. Employment handbooks that contain clearly explained bereavement policies can help eliminate uncertainty about the effect of a death on an employee’s pay and his or her obligations to employer.
Rights and Protections for Employees
Employees in Pennsylvania may have certain rights and protections when it comes to bereavement leave. Though the Pennyslvania legislature does not require private employers to provide bereavement leave, doing so allows employers to create a more accommodating workplace for employees affected by loss.
Both private and public employees can look to specific provisions in their employer’s employee handbook to determine if their employers have a bereavement leave policy.
Importantly, an employer must hold any benefits they provide to their employees consistent with the provisions of its employee handbook. In some instances, bereavement leave taken in accordance with employer policies can result in an employee’s elevated status within the company. However, in other companies, an employee might be denied an opportunity for advancement if they take more bereavement leave than the company allows for.
If an employer has a bereavement leave policy in their employee handbook, the employee’s rights and protections for that leave are most likely outlined in the same policy.
In situations where an employee’s bereavement leave is denied by an employer, the employee may be able to hold their employer accountable.
The appropriate steps following a denial of bereavement leave will depend on the nature of the policy. If the policy instead was outlined by the employer in an email or informal correspondence to employees, the employee may refer to the guidance provided in other related communication with the employer.
An employee correspondence with their employer could argue a variety of methods of violation, depending on the employer’s treatment of the employee:
If immediately following a denial of bereavement leave, an employer subsequently offers the employee a supplemental form of leave or date, it may be an indication that the post-denial treatment was a violation of the employee’s rights under law or company policy.
Employees then have the option of reaching out to a private lawyer to seek assistance in recovering the benefits. An experienced attorney with knowledge of Pennsylvania bereavement leave law can offer assistance on potential legal recourse for denied leave. Outside of a private attorney, the Department of Labor (DOL) in the state of Pennsylvania offers assistance to workers seeking to recover unpaid wages.
It is important to note that there is a strict statute of limitations on recovery for bereavement leave claims. Employees seeking to recover for denied leave only have two years from the time the rights were lost to pursue the claim. If the claim is successfully filed, the employer may be liable for a variety of costs associated with the leave, including any wages the employee would have made during the time period.
Other associated costs include:
Employees seeking to recover for bereavement leave should not delay in filing their claim for the best chance at being able to recover for lost wages.
How to Request Bereavement Leave
Requests for bereavement leave should be made in writing. It is likely your company’s policy will require you to request bereavement leave in writing. This is not only good policy for the employer but is best practice for the employee. Doing so allows the employee to have a record of the request and the employer to have the employee’s request documented. It also sets a precedent for future requests. While Pennsylvania law does not require an employee to document their leave request, it is helpful to both parties if this is included as part of your company’s policy.
It is wise to update your leave request policy to designate a point person in your Human Resources department who has the authority to review, approve, and authorize a bereavement leave request. Your employee leave request policy should be updated to include language that defines the point person and notes that all employees should forward leave requests to that person. It will also be helpful to include the time period for which an employee may be made to wait for the point person to approve the request (ideally no longer than 72 hours). A reasonable clarification to this would include a sentence to the effect of , "While an employee is entitled to up to three (3) days of paid bereavement leave, because requests for bereavement leave must be submitted to HR and HR makes the final call, an employee should assume bereavement leave is approved until a response to the leave request email is received by the employee.
In addition to confirming the employee submitted a request for leave to you, the point person’s job should be to confirm that the employee meets eligibility requirements prior to granting bereavement leave. Be wary of dismissing a request simply because the employee does not state the relationship of the deceased to the employee. An employee does not have to have an immediate family relationship to the deceased in order to request bereavement leave, though this is how many employers will define "immediate family" in their employment handbooks for purposes of handling bereavement leave requests. Because Pennsylvania law does not require that an employee note the relationship between themselves and the deceased in their leave request and defines spouse broadly to include any person in a spousal relationship with the employee, it is best to confirm the relationship between the employee and the deceased before denying a leave request for lack of relationship.
Effects on Employers
The potential impact on employers when they offer bereavement leave can be far-reaching. For many companies, offering paid time off (PTO) for bereavement occasions is part and parcel of the "at-will employment contract." Simply put, the introductory paragraph of a valid employment contract in Pennsylvania reads: "Your employment with the company is at will, and nothing in this handbook alters that fact." Most employers include in the handbook an explanation of PTO, explaining that an employee must request the PTO using procedures established for requesting time off from employment. PTO often can be used for any reason, including bereavement. Since PTO is usually accrued, employees who use their PTO for bereavement purposes must have earned the right to use that time.
Employers are not mandated by PA state law to provide PTO or bereavement leave. However, it may be in an employer’s best interests to provide PTO or bereavement leave as it may make the employer more appealing to potential hires.
Sometimes, employee absences become problematic when the employee repeatedly has a family member die, or loses non-family members. Employers may experience a hardship if the employee is absent repetitively for bereavement purposes. Employers still have the right to terminate the employee, provided the employer follows the same policy it would follow in other situations where the employee is unable to perform the job due to circumstances outside of the employee’s control.
An employee may not be disciplined or terminated for taking lawful bereavement leave. However, if it appears that an employee is abusing their in-law bereavement leave, the employer may conduct an investigation. If the employer suspects that the employee took an in-law bereavement leave when a family member was not deceased, the employer should speak with the employee about the situation. It may have been a misunderstanding that led the employee to take the leave, and in such cases, a sternly worded notice that the absence was not authorized may be sufficient discipline if it is the first time the employee has been warned about the issue.
Potential Future Changes and Proposed Laws
While bereavement leave laws are not bound in stone, no changes to the existing Pennsylvania law have been proposed and it appears unlikely that any will be forthcoming in the near future. That said, the landscape of paid leave requirements is changing rapidly. Twenty-six states have adopted paid leave programs or other paid leave benefits for employees in the event of a family member’s illness, birth of a child, etc. Of those, only California, New Jersey, and Rhode Island require employers to provide paid time off for bereavement. It is likely that there will be a movement at some point to add bereavement to the list of required events entitling employees to paid leave.
As both federal and local governments continue to enact paid sick leave legislation, there may be an increased demand for such leave to be expanded to cover bereavement leave. Companies should consider tailoring their human resources policies to account for existing bereavement leave laws , and tracking these state laws, both for changes that may occur and in preparation for doing business in states that do not presently have laws addressing bereavement leave requirements. As many companies tend to aggregate HR policies and practices throughout the entire company under one umbrella of rules applicable to all employees nationwide. This leaves employers without the tools to proactively adjust to changes in the law in states where they are not located.
Prudent employers can minimize exposure to claims for bereavement leave by taking the time to review their policies, and ensuring that their policies and practices comport with current law in the relevant jurisdiction(s). Proper training of supervisory employees is equally important to ensuring that employees fully understand company policies and practices.