PunchBereavement Leave Laws: What Small Employers Owe in 2026
Bereavement Leave Laws: What Small Employers Owe in 2026
The short answer: No federal law requires bereavement leave, paid or unpaid. Four states mandate it directly. California requires up to five days at five or more employees, Illinois requires up to ten workdays at FMLA-covered employers, Oregon requires up to two weeks at 25 or more employees, and Washington pays up to seven days through its state program starting July 1, 2026. Three more states let an employee spend leave they already earned on a funeral. Whatever you pay, those hours are not hours worked, so they must never inflate the overtime base. Punch keeps time off as its own record, separate from punched hours, so a funeral week cannot manufacture overtime you do not owe.
A death in a crew member's family is the one absence nobody plans for. The call comes on a Tuesday, the person is gone Wednesday through the following Monday, and somebody has to decide, quickly, what the paycheck looks like. Most small employers handle the human part well and the payroll part badly. The payroll part is the one a wage claim is built on.
Federal Law Requires Nothing
The Fair Labor Standards Act pays for hours worked. Grieving is not work, so the FLSA has nothing to say about it.
The Family and Medical Leave Act does not help either, and this is the most common misread in the whole subject. FMLA covers an employee's own serious health condition, care for a family member with one, birth or placement of a child, and certain military exigencies. Death is not a serious health condition. Once the family member has passed, FMLA leave to care for that person ends. An employee who takes a week to bury a parent is not on FMLA leave for that week.
So bereavement is a state question and a policy question. Nothing more, and nothing less.
Four States Mandate the Leave Outright
California. Under Government Code § 12945.7, added by AB 1949, employers with five or more employees must grant up to five days of bereavement leave for the death of a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. The employee must have worked for you at least 30 days. The days do not have to be consecutive, and the leave must be completed within three months of the death. The leave is unpaid unless your own policy pays it, and the employee may substitute vacation, personal leave, accrued sick leave, or comp time. You may require documentation within 30 days of the first day of leave, and a death certificate, a published obituary, or written verification from a funeral home, religious institution, or government agency all qualify. Whatever the employee gives you stays confidential.
Illinois. The Family Bereavement Leave Act gives eligible employees up to two weeks, meaning ten workdays, of unpaid leave to attend a funeral or its alternative and to make the arrangements a death requires. The covered family list is broad: child, stepchild, spouse, domestic partner, sibling, parent, stepparent, parent-in-law, grandchild, and grandparent. Coverage tracks the FMLA, so it reaches employers with 50 or more employees within 75 miles, and the employee needs 1,250 hours in the prior 12 months. This leave sits on top of FMLA entitlement, not inside it.
Oregon. The Oregon Family Leave Act applies at 25 or more employees and gives eligible workers up to two weeks of bereavement leave per death, capped at four weeks in a 12-month period. Eligibility requires 180 days of employment averaging 25 hours a week. The leave is generally unpaid, though accrued paid leave may be used, and it must be completed within 60 days of the employee receiving notice of the death.
Washington. Bereavement runs through the state Paid Family and Medical Leave program rather than a standalone mandate, and it gets substantially better on July 1, 2026. Senate Bill 5217, signed April 8, 2025, raises the maximum from three days to seven paid days, extends it to the death of any qualifying family member, and lets the employee take it any time within 12 months of the death instead of the first week.
Three More States Let Employees Spend Leave They Already Have
These are easy to miss because they are buried in sick leave statutes rather than filed under bereavement.
- Colorado. SB 23-017 added bereavement to the qualifying uses of paid leave under the Healthy Families and Workplaces Act, effective August 7, 2023. An employee may use accrued paid sick leave to grieve, attend a funeral or memorial, or handle the financial and legal matters that follow a death. Accrual is one hour per 30 hours worked, up to 48 hours a year.
- Minnesota. Under § 181.9447, earned sick and safe time may be used to make arrangements for or attend a funeral or memorial, and to address financial or legal matters arising after a family member's death.
- Maryland. The Flexible Leave Act, at 15 or more employees, requires you to let an employee use paid leave they have already accrued for the death of a child, spouse, or parent. It does not create a new bank of days.
Everywhere else, bereavement is entirely your call. Most employers land on three to five paid days for an immediate family member and one to three for extended family. Write it down before you need it. Deciding the number while a grieving employee waits on your text message is how two people in the same crew end up with different answers, which is the fact pattern discrimination claims are made of.
The Overtime Mistake That Costs Real Money
Here is where a compassionate decision turns into a wage violation.
Bereavement hours are not hours worked. A crew member who works 36 hours and takes 8 hours of paid bereavement has worked 36 hours that week. There is no overtime. If your timesheet shows 44 and your payroll pays 4 hours at time and a half, you have just paid a premium you did not owe, and you have also proven that your records do not distinguish worked hours from paid hours. That second problem is the expensive one in an audit.
The pay itself is also excludable from the regular rate. 29 U.S.C. § 207(e)(2) excludes payments made for occasional periods when no work is performed due to vacation, holiday, illness, or other similar cause. 29 CFR § 778.218 confirms the treatment and adds the other half of the rule: no part of such a payment may be credited toward overtime compensation you actually owe. So bereavement pay does not raise the regular rate, and it does not count as a down payment on a premium either.
The root cause of both errors is the same. Paid-but-not-worked hours get typed into the hours column so the paycheck total comes out right. A spreadsheet only has one column, which is exactly why spreadsheets produce this bug.
Salaried Employees Follow a Different Rule
For exempt employees, the salary-basis rules in 29 CFR § 541.602 govern. Deductions may be made when an exempt employee is absent for one or more full days for personal reasons other than sickness or disability. Bereavement is a personal reason, so a full-day deduction is permissible under federal law.
A partial day is not. If your salaried foreman leaves at noon for a memorial service, you owe the full day. Docking half a day puts the exemption itself at risk, and a blown exemption is retroactive overtime for every week that employee worked over 40 hours. Most small employers simply pay the salaried person through the absence, which is both the kind thing and the safe thing. Check your state as well, since several are stricter than the federal floor.
What This Looks Like on the Timesheet
Four steps. Three of them are records.
- Write the policy before you need it. One page: which relationships qualify, how many days, whether they are paid, whether extended family gets fewer, and what documentation you ask for. Apply it identically to everyone.
- Keep the absence out of the punch record. Worked hours come from punching in and punching out. Funeral days are a time-off record, never a punch.
- Let the system compute overtime from worked hours only. Never hand-add bereavement hours into a weekly total and hope the multiplier sorts itself out.
- File the paperwork with the pay period. The request, the approval, any documentation. Keep it confidential and keep it findable.
Frequently Asked Questions
Is bereavement leave required by federal law?
No. Neither the FLSA nor the FMLA requires bereavement leave. FMLA covers a serious health condition, and death is not one, so FMLA leave to care for a family member ends at their death.
Which states require bereavement leave?
California, Illinois, Oregon, and Washington mandate it directly, each with its own coverage threshold and day count. Colorado, Minnesota, and Maryland require that employees be allowed to use leave they have already accrued for a death in the family.
How many days of bereavement leave does California require?
Up to five days for employers with five or more employees, for an employee who has worked at least 30 days. The days need not be consecutive and must be used within three months of the death. The leave is unpaid unless your policy pays it, and the employee may substitute accrued paid leave.
Does bereavement pay count toward the 40-hour overtime threshold?
No. Bereavement hours are not hours worked. A week of 36 worked hours plus 8 paid bereavement hours produces no overtime.
Is bereavement pay included in the regular rate for overtime?
No. Under 29 U.S.C. 207(e)(2) and 29 CFR 778.218, pay for occasional periods when no work is performed is excludable from the regular rate, and none of it may be credited toward overtime you owe.
Can I dock a salaried employee for a bereavement absence?
For a full day, generally yes under 29 CFR 541.602, because bereavement is a personal reason. For a partial day, no. Partial-day deductions from exempt salary put the exemption at risk.
Can I ask for proof that someone died?
In California, yes, within 30 days of the first day of leave, and a death certificate, obituary, or written verification from a funeral home or religious institution all qualify. The documentation must be kept confidential. Elsewhere it depends on your state and your own policy, so decide once and apply it evenly.
Handle the Loss Well. Keep the Records Clean.
Bereavement is the absence where you want zero friction for the employee and zero ambiguity in the file. Those two goals only conflict when your timekeeping cannot tell an hour worked from an hour paid.
Punch keeps that line clean. Worked hours come from punching in and punching out, recorded to the minute against a job site, with lunch tracked separately. Time off is requested by the employee and approved by an owner or manager as its own record, so a funeral week never quietly lands in the hours column. Overtime is calculated from real punched hours using the rules for your jurisdiction, with over 50 country presets built in. Owners and managers approve each pay period before payroll runs, weekly or bi-weekly, with bulk approve for a clean week, then export straight to QuickBooks Online or to CSV and Excel. Punch-in can be geofenced to the job site when you want that verification, and it is a geofence rather than a camera in your crew's face, because trust beats surveillance.
Pricing is flat per workspace instead of per employee, so a seasonal crew does not change the bill. Owners are always free, and every plan includes every feature. The 14-day free trial starts on signup, no credit card required.