by Armando Rodriguez, Esq - Product Compliance Counsel Compliance And Legal Department
& Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,
June 30, 2022
The Oregon bereavement leave is part of the state's unpaid but job protected Oregon Family Leave Act but is specifically excluded from the state's paid family and medical leave (PFML) program which will go into effect soon. We covered the new Washington bereavement leave in this blog post. It is essentially an additional leave reason under the Washington PFML program. You can learn more about these 2 state programs – and all other state paid leave programs – on our summary of Statutory Disability and Paid Family Leave Laws.
The Current Law
The current law, in effect through December 31, 2022, requires covered employers to provide eligible employees with up to two weeks (or ten workdays) of unpaid leave per death of a child, or up to 30 workdays in the event of the deaths of 3 or more children. The law states it does not create a right for an employee to take unpaid leave that exceeds unpaid leave allowed under the federal Family and Medical Leave Act (FMLA), meaning that an employee who has previously exhausted their FMLA entitlement is not eligible for Child Bereavement leave. However, because the FMLA is a federal law, and employer cannot deny FMLA leave due to an employee’s prior use of the Child Bereavement Law. Here’s more about current leave:
- Applies to employers who employ 50 or more employees
- Employees are eligible if they:
- Have 1250 hours of service with the employer during the past 12 months
- Have 12 months of service
- Work at a worksite with at least 50 employees within 75 miles
- Upon the death of a child:
- To attend the funeral or alternative to a funeral
- To make arrangements necessitated by the death of the child
- To grieve the death of the child
- Definition of “child” includes biological, adoptive, foster, step, legal ward, and in loco parentis; and has no age limit
- Up to 2 weeks of unpaid leave per death of the child
- Maximum of 6 weeks per 12-month period in the event of the death of 3 children
- Each leave must be completed with 60 days of the employee receiving notice of the death of the child
So What’s Changing?
The expansion takes effect on January 1, 2023, and maintains the same framework of the prior law. Same rules for eligibility and entitlement applies, as well as how the law interacts with the FMLA. However, as mentioned above, the new law has expanded both leave reasons and covered relationships. Here’s more about the new law:
- Applies to employers who employ 50 or more employees
- Employees are eligible if they:
- Have 1250 hours of service with the employer during the past 12 months
- Have 12 months of service
- Work at a worksite with at least 50 employees within 75 miles
- Leave reasons include:
- Miscarriage
- Unsuccessful round of an assistive reproductive procedure
- Failed adoption match or adoption contested by another party
- Failed surrogacy agreement
- Diagnosis that negatively impacts pregnancy or fertility
- Stillbirth
- Upon the death of a Family Member:
- To attend the funeral or alternative to a funeral
- To make arrangements necessitated by the death of the child
- To grieve the death of the child
- “Family Member” is defined as an employee's child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent
- Definition of “child” remains the same and includes biological, adoptive, foster, step, legal ward, and in loco parentis; and still has no age limit
- “Domestic Partner” means the person recognized as the domestic partner of the employee under any domestic partnership or civil union law; or an unmarried adult person who is in a committed, personal relationship with the employee, who is not recognized as a domestic partner under any domestic partnership or civil union law, who is designated to the employee's employer as the employee's domestic partner, and who is not in such a relationship with any other person.
- Up to 2 weeks of unpaid leave per event
- Maximum of 6 weeks per 12-month period in the event of the death of family members
- Each 2 weeks must be completed with 60 days of the employee receiving notice of the event
Under both the current law and the expanded version, the employer is entitled to reasonable documentation. For death of a child or family member, that could mean a death certificate, published obituary, or written verification of death, burial, or memorial service. For all other reasons, documentation completed by a health care provider, adoption or surrogacy agency, or other appropriate party certifying the leave. Additionally, employers are required to maintain health benefits during the leave and to restore employees to their position upon return from the leave.
Matrix Can Help!
Our team of Absence Management Specialists is well versed in all things leave. Be it bereavement, donor, or FMLA leave, Matrix is here to help you stay compliant with state and federal leave requirements. Matrix will be administering the expanded Illinois bereavement law as part of our suite of leave of absence management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at [email protected].