Massachusetts Bereavement Leave Laws Explained

What Is Bereavement Leave?

Employees in Massachusetts may be entitled to bereavement leave, either by law, or where it is appropriate, by company policy. Many state laws, written into state wage and hour legislation, allow employees who have lost a loved one to take time off for mourning, though none are punitive for failing to provide an employee with the leave requested. One federal statute, the Family Medical Leave Act (FMLA), does impose substantial obligations on employers with regard to bereavement leave, but only where an immediate family member of the employee has died. Thus, although an FMLA eligible employee must be allowed up to 12 weeks off in a 12-month period to mourn the loss of a child, where an employee has lost a parent, sibling, or grandparent, the employer is under no obligation to offer leave .
Moreover, many employers have bereavement leave incorporated into their employee handbooks or otherwise provided, as a courtesy to their employees. This leave, however, may be of any duration, for any specific person, and for any geographic area, as determined at the policy owner’s discretion. To provide an employee with the time necessary to mourn the loss of a loved one, the employer may set forth specific policies regarding the type of leave offered, the person covered, and the geographic area available, right in their handbook. This allows the employer to determine the time that would be most beneficial to the business, while still offering the employee the freedom to take the time needed.

Massachusetts Bereavement Leave Laws Today

Massachusetts does not have a common law requirement for employers to offer unpaid bereavement leave. In the absence of such a requirement, employers may establish their own policies or practices regarding employee bereavement leave. Notably, employers are not required to provide their employees with any bereavement leave. However, Massachusetts employers offering bereavement leave must do so in conformance to Massachusetts law. Currently, under Massachusetts law, there is no requirement for Massachusetts employers to provide bereavement leave, (although many public sector entities are covered by laws that require the payment of wages to certain family members of deceased employees.) In terms of whether bereavement leave is mandated by law for private Massachusetts companies, while not always easy to identify, Massachusetts courts hold that employee benefits generally imposed on private employers are statutory. Burge v. S. Shore Sch., 450 Mass. 187 (2007) (internal citations omitted). There is therefore no requirement under state law for employers to provide bereavement leave. Lastly, some Massachusetts municipalities have enacted ordinances that require employers to grant bereavement leave, however these remain few and far between (and often involve more nuanced provisions than simply mandating that employers grant bereavement leave), and employers are well-advised to check each municipality’s ordinance individually to determine its application in any given situation.

Available Employer Policies for Bereavement Leave

Employers in Massachusetts and the law firms that represent employers will likely be aware of the common practices for bereavement leave and the policies that employers may have in place. Nevertheless, there is no state law requiring private sector employers to provide paid or unpaid bereavement leave in Massachusetts.
In Massachusetts, bereavement leave policies vary. Some employers, like the Town of Amherst, have more generous policies. In Massachusetts, according to the Town of Amherst’s policy, town employees may receive up to five (5) working days as bereavement leave for time, without loss of pay, required due to the death of a member of the employee’s immediate family.
According to the Town of Amherst’s policy, the immediate family consists of a spouse or domestic partner, child, mother, father, sister or brother. In addition, the Town recognizes bereavement leave for grandparents, grandchildren, mother-in-law, father-in-law, brother-in-law, sister-in-law, aunt, uncle, step-child, step-brother or step-sister.
As for other companies throughout Massachusetts, some offer employees with time to grieve with pay, while some allow employees to take up to five (if not more) days off without pay to mourn. Other employers may have no bereavement leave policies and allow employees to take vacation or time off to grieve without pay.
However, even if their bereavement leave policy provides five (if not more) days off to mourn, employees should make sure to review their employment contracts, applicable collective bargaining agreements, handbooks, or any other benefits information related to bereavement or death of a member of immediate family. If a company handbook provides paid bereavement, but the employee never received it, unlike health care, vacation, sick leave, and personal leave, bereavement leave for an employer’s negligence could be covered under the Wage Act and entitle the employee to damages under the statute.

Eligibility for Bereavement Leave and its Duration

Unless an employer’s policy is more generous, bereavement leave is not a legal requirement under Massachusetts law. Since bereavement leave is not mandated as a matter of law, the answer to the question who is eligible for bereavement leave depends on whether the employer to which the question is directed allows for bereavement leave. Herein I discuss the analysis both in the context of employers that do provide bereavement leave pursuant to a policy or practice and in the context of employers not providing bereavement leave. Employers that provide bereavement leave are likely doing so as part of a general leave policy. In the context of an employer that does have a bereavement leave policy – either because it is required under a collective bargaining agreement (CBA) to which the employer is a party or because it is required under a unionizing process in which the employer is involved – a question arises as to the length of the leave. Again, absent a CBA or a policy to which the employer has committed, an employer is free to determine whether or not it will provide bereavement leave and, if it decides to provide such leave, how long the leave can be. One approach for the employer is to consider the average days off provided by Massachusetts employers. A survey regarding this issue, published by the Society for Human Resource Management in 2013, indicated that, of employers who were surveyed and who provided paid leave for bereavement reasons, 81% provided three days of leave while 10% provided five days of leave.

Applying for Bereavement Leave

In order to apply for bereavement leave, private employees in Massachusetts should directly follow their employer’s established procedure for requesting time off. If your company does not have a bereavement leave procedure in place, request to speak with your supervisor or human resources director about your intention to take time off. It’s best to do this as soon as you know you need to take leave, or at least within 30 days of the event. Bereavement leave generally follows a similar process as requesting a short-term disability leave of absence other than the documentation requirements.
If your employer does have a bereavement leave policy in place, be sure to follow it closely. You’ll likely need to provide proof of both the relationship and the passing, along with a written request for leave. Your employer may ask for additional documentation in extreme circumstances. In some cases, an employer may provide applicants some latitude when it comes to leaving time for grieving , while in other cases, you may be required to go back to work right away.
Massachusetts law does not address bereavement leave, so your company’s policies will vary on this front from employer to employer. Follow your company’s policy and be prepared to show documentation of the relationship to the deceased, the death itself, and the relationship between you and the deceased. For immediate family, this can include a birth or marriage certificate. For in-laws and extended family, this can include documentation such as a birth or marriage certificate that shows the relationship to the deceased.
In some cases, your company’s sick leave policy may overlap with bereavement leave. If this is the case, you may be able to take leave without management approval if you have accrued sick time available. If your employer doesn’t allow sick time to be taken without approval, however, you must be upfront with them about your time off to avoid discipline.

Legal Rights and Employee Protections

In addition to the protections under the FMLA, employees in Massachusetts may be protected from discrimination on the basis of race, color, religious creed, national origin, sex, age, sexual orientation, gender identity, genetic information, or military status. When dealing with bereavement leave, however, one aspect of the law in Massachusetts that many employees have never heard of (and even many employers are unaware of) is G.L. c. 151B, § 4(16). This section prohibits discrimination on the basis of "ancestry." Discrimination based on an employee’s ancestry is illegal even when there are no facts to show that the employer was aware that the employee was of a particular ancestry. Therefore, G.L. c. 151B, § 4(16) can be useful for employees who have been denied bereavement leave on the grounds that their loss did not occur in the United States.
Additionally, the Massachusetts Equal Rights Law specifically prohibits employment discrimination on the basis of national origin or race. If a state agency’s investigation results in a finding of disability discrimination, the employee can file a lawsuit within three years of the date of the alleged unlawful practices with the Superior Court if the employer has 6 to 50 employees or with the Massachusetts Commission Against Discrimination if the employer has 5 or fewer employees.
Notably, some cities and towns have paid sick leave ordinances that may cover bereavement leave.

An Overview of Bereavement Leave in Other States

When contrasting the Massachusetts bereavement leave situation with those neighboring states of Rhode Island, Connecticut and New Hampshire, Massachusetts holds the distinct honor of being the only state that has no law mandating bereavement leave in any form.
Rhode Island is the closest state to Massachusetts in this area. It requires that employers provide employees with the time off to attend the funeral and make arrangements related to the death of a member of his or her family. It covers temporary employment situations, stating that even temporary workers have access to this form of time off. It defines a family member as "mother", "father", "grandmother", "grandfather", "brother", "sister", "father-in-law", "mother-in-law", "son", "daughter", "stepfather", "stepmother", "stepchild", "spouse" or "domestic partner".
Unlike Massachusetts, Connecticut does have a bereavement leave law – but it is far more focused on the needs and situation of the employer. The law mandates that an employer must provide bereavement leave for 2 weeks only if an employee requests it. If the employer grants the request, it must provide the following payment: "the employee shall be compensated at the employee’s full current rate of pay to the extent of any unused sick leave accrued to such employee, or if such employee has no unused sick leave accrued or if the employee does not wish to use such accrued sick leave, at the employee’s full current rate of pay for such period up to a maximum of two weeks."
While New Hampshire doesn’t seem to have a specific bereavement leave law per se, it does include the right to bereavement leave time as part of overall time off per the state’s Family and Medical Leave law. Like Connecticut, the law requires that the employee make a request to the employer for the bereavement leave time. It makes no distinction between a family member. It does not provide compensation for the time off, however.
The absence of a law in Massachusetts is interesting, considering that its Missing Persons Bill H.3244 was passed on January 30, 2013. That bill requires that a employer provide leave for up to ten days of employment for employees who are immediately family members and require time off to locate a child or other person suffering from a life threatening medical condition or unless it is not possible due to unusual circumstances.

The Conclusion and What Lies Ahead

In summary, Massachusetts law does not require employers to provide employees with any bereavement leave. However, in lieu of a statutory requirement, many Massachusetts employers make the decision to offer bereavement leave as a form of employee benefit. The Massachusetts Funeral Leave Law requires that an employer grant an employee up to 3 days of unpaid accumulated sick leave during the 3-month period immediately following the death of the employee’s grandfather, grandmother, spouse, child, stepchild, mother, father, brother, or sister. Practically speaking, this is the only statutory bereavement leave requirement that exists in Massachusetts.
As it currently stands , Massachusetts does not have any bills or legislation pending in the state legislature that could impose a bereavement leave requirement on public and private sector employers. However, it is possible that future new legislation could be passed.
Regardless of whether Massachusetts law becomes more stringent requiring that employers implement bereavement leave policies, employers should consider how bereavement leave is addressed in their employee handbooks. Assuming that offers bereavement leave as an employee benefit, it is highly recommended that employers implement a bereavement leave policy clearly defining:
By implementing such a policy, employers may be able to circumvent some of the adverse consequences resulting from bereavement leave requests that are either denied or treated inconsistently with company policy.