Introduction
Effective January 1, 2023, California implemented a significant shift in its employee protection framework with the enactment of Assembly Bill 1949 (AB 1949). Signed by Governor Gavin Newsom, the bill amends the California Government Code to establish bereavement leave as a protected right for employees. For the first time, employers in California are legally obligated to provide eligible workers with leave following the death of a close family member. This legislative development not only strengthens employee rights but also ensures a more compassionate workplace environment during times of personal loss. The Nakase law firm has closely followed the development and implications of AB 1949, providing guidance to both employers and employees navigating this new legal landscape.
In California, bereavement leave is now a protected right that guarantees eligible employees up to five days of job-secured time off per family death, taken within three months, with specific rules on eligibility, documentation, and employer compliance. This article explores every aspect of AB 1949, including eligibility, scope, leave structure, employer obligations, documentation requirements, legal remedies for violations, and how legal counsel can assist affected employees. It also addresses how this law interacts with existing company policies and outlines best practices for employer compliance.
Historical Context and Legislative Change
Prior to AB 1949, bereavement leave in California was solely dictated by an employer’s internal policy or collective bargaining agreements. Unlike other types of protected leave under the California Family Rights Act (CFRA) or federal Family and Medical Leave Act (FMLA), there was no statewide mandate guaranteeing employees time off to grieve the death of a loved one. While previous legislative attempts had failed or been vetoed, AB 1949 succeeded in creating a universal standard for bereavement leave in California.
Who Must Comply With AB 1949?
AB 1949 applies to all private and public employers in California who have five or more employees. This coverage mirrors the threshold used under the CFRA. Even small businesses with just five staff members must comply with the law, making this a far-reaching regulation that impacts employers across a wide range of industries and sectors.
Eligibility Criteria for Employees
To qualify for bereavement leave under AB 1949, an employee must have been employed by the company for at least 30 days before the date the leave begins. This requirement helps ensure that the right to leave is granted to workers with some established tenure, even if brief. Notably, the law does not require full-time status; part-time employees who meet the 30-day tenure threshold are also eligible.
Covered Family Members
The law specifies a list of family members whose death can trigger the right to bereavement leave. These include:
- Spouse
- Child
- Parent
- Sibling
- Grandparent
- Grandchild
- Parent-in-law
- State-registered domestic partner
These definitions align with those found in the CFRA, providing consistency across California’s employment laws.
Amount of Leave Permitted
AB 1949 entitles eligible employees to take up to five days of bereavement leave per qualifying family member’s death. Importantly, the law does not place a cap on how many times this leave can be used in a calendar year. Therefore, if an employee experiences multiple family losses in a short span of time, they may take separate leave periods of up to five days for each incident.
This five-day bereavement leave is in addition to the 12 weeks of job-protected family and medical leave already available under the CFRA. It does not reduce or interfere with those 12 weeks in any way.
Timing and Structure of the Leave
The five days of bereavement leave do not have to be taken consecutively. Employees may choose to split the leave as needed, which allows for flexibility in managing funeral arrangements, family obligations, and personal grieving. However, all five days must be used within three months (90 days) of the family member’s death. This three-month window ensures that the leave remains closely tied to the bereavement event while offering flexibility in scheduling.
Paid or Unpaid Leave: What Does the Law Require?
AB 1949 does not mandate that bereavement leave be paid, leaving that decision to individual employers based on their existing policies. However, the law provides specific rules based on an employer’s current bereavement leave offerings:
- No Existing Bereavement Leave Policy: If the employer does not have any policy for bereavement leave, the employee is entitled to five days of unpaid leave. However, the employee has the option to use any accrued paid leave (e.g., vacation, personal leave, or paid time off) to receive compensation during this time.
- Policy Offers Less Than Five Paid Days: If the employer’s policy provides fewer than five paid days, the employee is entitled to receive pay for the number of days covered. The remaining days, up to a total of five, may be taken unpaid, unless the employee chooses to use their accrued paid leave.
- Policy Offers Less Than Five Unpaid Days: In this scenario, the employee is still entitled to at least five unpaid days. As with the other cases, the worker can use accrued paid leave to receive compensation for the unpaid portion.
This flexible approach balances the need for employee protection with an employer’s discretion in offering paid leave benefits.
Documentation Requirements
Employers are allowed to request documentation verifying the death of the qualifying family member. Acceptable forms of verification include:
- Death certificate
- Published obituary
- Written verification from a funeral home, burial society, crematorium, religious institution, or government agency
If the employer chooses to request documentation, the employee must submit it within 30 days from the first day of their bereavement leave. Importantly, all documentation must be kept strictly confidential and may only be disclosed internally on a need-to-know basis, to legal counsel, or as required by law.
Prohibitions Against Employer Retaliation or Interference
AB 1949 explicitly prohibits employers from retaliating against employees who request or take bereavement leave. This means an employer may not:
- Deny the leave
- Fire, demote, suspend, or discipline an employee for taking bereavement leave
- Interfere with the employee’s right to take the leave
- Retaliate against employees who participate in investigations or legal proceedings related to bereavement leave violations
This protection mirrors that found under CFRA and other California leave laws, aiming to shield workers from adverse employment consequences during sensitive times.
Unionized Employees and Collective Bargaining Agreements
Employees covered by a valid collective bargaining agreement (CBA) may be excluded from AB 1949 if the agreement meets all the following conditions:
- Provides for bereavement leave equivalent to AB 1949’s requirements
- Specifies wages, working hours, and conditions
- Pays premium rates for all overtime hours worked
- Ensures a regular hourly wage at least 30% higher than the state minimum wage
If all these criteria are met, the collective agreement governs bereavement leave rights instead of AB 1949.
Special Provisions for State Employees
California law has long permitted certain state employees to take three days of paid bereavement leave, with an option for two additional unpaid days if the death occurred out of state. AB 1949 clarified that:
- The three days of paid leave apply to each bereavement “occurrence”
- The two additional unpaid days may be used regardless of the location of death
- Employees may use accrued leave credits to cover the unpaid portion
These clarifications ensure that state employees have consistent and equitable access to bereavement time.
Mediation Program for Smaller Employers
For employers with between five and nineteen employees, AB 1949 allows for participation in the Civil Rights Department’s (formerly the Department of Fair Employment and Housing) mediation pilot program. This optional dispute resolution process provides a less adversarial method to resolve complaints arising under AB 1949 or the CFRA.
Enforcement and Filing a Complaint
If an employee believes their right to bereavement leave has been violated—whether through denial, retaliation, or interference—they may file a complaint with the California Civil Rights Department (CRD). Complaints can be filed in several ways:
- Online via the Cal Civil Rights System (CCRS)
- By mailing a printed intake form to the CRD’s Elk Grove office
- Over the phone
- Via email to the CRD’s contact center
The complaint should include detailed information such as dates of the incident, names of those involved, a description of the conduct, and any supporting evidence. Once submitted, the CRD will investigate the claim, which may involve interviews, document collection, and legal review. In certain cases, the CRD may offer mediation services. If evidence supports the claim, the CRD may issue a Right-to-Sue letter, enabling the employee to pursue the matter in court.
Legal Remedies and Role of Attorneys
Employees who experience violations of bereavement leave rights may seek legal representation to navigate the process. An attorney can provide several key services, including:
- Legal Evaluation: Assessing whether the employer’s actions constitute a violation
- Evidence Collection: Assisting with gathering documentation, emails, and company policies
- Explaining Legal Rights: Clarifying what protections the employee has under AB 1949
- Negotiation: Communicating with the employer to seek resolution or settlement
- Filing Complaints: Drafting and submitting formal claims to the CRD
- Demand Letters: Issuing legal notices to the employer outlining grievances and legal basis
- Litigation Representation: Representing the employee in court if the matter escalates
- Anti-Retaliation Support: Protecting the employee from retaliatory actions and filing further claims if such actions occur
- Emotional Guidance: Offering reassurance and stability throughout what can be a stressful legal process
Practical Recommendations for Employers
Employers are strongly encouraged to review their existing bereavement leave policies to ensure compliance with AB 1949. If no policy currently exists, it may be prudent to adopt one that meets or exceeds the minimum standards set by the law. For organizations with policies offering fewer than five days of leave, an update may be necessary to clarify whether additional days are paid, unpaid, or covered by accrued leave balances.
Employers should also train HR staff and managers on the requirements of AB 1949 to prevent unintentional violations. Confidentiality procedures regarding documentation should be clearly defined, and internal systems should be set up to manage requests for bereavement leave promptly and sensitively.
Conclusion
Assembly Bill 1949 marks a meaningful advancement in California’s labor laws by recognizing the emotional and logistical burdens employees face after losing a family member. By mandating up to five days of protected bereavement leave, California ensures that employees have the time they need to mourn, organize funeral arrangements, and begin the healing process—without fear of job loss or workplace retaliation.
Whether you’re an employer adjusting your policies or an employee seeking to understand your rights, AB 1949 brings clarity and compassion to the workplace during life’s most difficult moments. Staying informed about its provisions is key to promoting a respectful and compliant work environment across the state.