Bereavement Leave for Complex Family Relationships

My employee wants to use California’s new bereavement leave after the death of the father of her child — with whom she lived but never married. Another requested it for her ex-father-in-law, whom she remained close to after her divorce. One more request came in to use the new leave for a “designated person.” Exactly who is considered a covered family member under the new law?

Employees with 30 days of service may take up to five days of job-protected bereavement leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, domestic partner or parent-in-law.

The new law uses the definitions of those terms from the California Family Rights Act (CFRA) regulations.

Complex family relationships can make it quite a challenge to figure out exactly for whom an employee may legally take bereavement leave.

Spouse or Domestic Partner

A spouse is someone to whom your employee is currently married. It does not include a former spouse.

A domestic partner is not merely an individual with whom your employee lives; the couple must be registered as a domestic partnership with the California Secretary of State.

California does not recognize common-law marriages, even for couples who have lived together for many years.

Therefore, your employee is not entitled to bereavement leave for the father of her child because they were neither married nor registered as domestic partners.

In-Laws, Stepparents, Stepchildren

An employee may use bereavement leave for current parents-in-law, stepchildren or stepparents, as well as the parents and children of their current registered domestic partner.

An employee’s divorce or dissolution of a registered domestic partnership would by law end the other linked relationships, so your employee would not be entitled to use bereavement leave for her former father-in-law.

Similarly, if your employee is widowed, they would not be entitled to use bereavement leave for the individuals whom they still may consider to be their in-laws and stepchildren. This is because they are not legally related to those individuals after the death of their spouse or domestic partner.

Note that if your employee stood “in loco parentis” to a child while that child was growing up, protected bereavement leave could apply despite the end of a legal relationship as a stepchild. “In loco parentis” means a person who stands in place of a parent by having day-to-day responsibilities to care for and financially support a child even without a biological or legal relationship.

Designated Person

It’s important to note that although the CFRA was expanded recently to allow a leave of up to 12 weeks to care for a designated person (any individual “related by blood or whose association with the employee is the equivalent of a family relationship”) with a serious health condition, the bereavement leave law does not provide employees time off after the death of a designated person.

Employer Policies May Be More Generous

Given the many complex family relationships that can arise, an employer certainly could choose to extend bereavement leave beyond what is required by law.

Seek legal counsel if you wish to extend your bereavement policy beyond the relationships covered by the new law.

Ellen Savage, Employment Law Expert, CalChamber

CalChamber members can read more about Bereavement Leave in the HR Library. Not a member? Learn how to power your business with a CalChamber membership.