In June 2018, the New York State Legislature overwhelmingly approved legislation that would have granted paid bereavement leave rights to most employees. The measure would have changed the New York Paid Family Leave Benefits law to include bereavement leave along with the existing qualifying circumstances.

In light of extensive resistance from the business community, the Legislature did not formally deliver the bill to the Governor’s office until December. Upon receipt, Governor Cuomo vetoed the legislation ostensibly out of concern for the impact on workers.

Proposed Bereavement Leave Amendment

New York bereavement leave legislation passed the Senate by a vote of 61-1 and the Assembly 111-32.

Republican Senator Rich Funke and Democratic Assemblyman Joe Morelle sponsored the amendment. Both have lost children who were in their early thirties. Their memorandums in support of the bill stated:

“The inability to take time to process grief not only has an impact on a person’s health and their family, it has a profound impact on their ability to carry out their normal day to day tasks. However, on average, four days are allotted for the death of a spouse or child, according to the Society for Human Resource Management 2016 Paid Leave in the Workplace Survey.”

The legislation relied on additional wording in the Paid Family Leave Benefits law that took effect at the beginning of 2018. It modified the definition of “family leave” to include “leave taken for the purposes of bereavement due to the death of a family member.” The legislation also indicated that a death certificate would provide the necessary certification of eligibility for leave.

Potential Impact of Proposal

These minimal revisions to the Paid Family Leave legislation could have had extreme consequences.

Bereavement leave apparently would have been available for up to 10 weeks (increasing to 12 weeks in 2021) each year without any limitation on the timing relative to the death. Moreover, it would have been available equally regarding a broad array of family members, including grandchildren, children, spouses, parents, and grandparents. Although the New York Workers’ Compensation Board likely would have been able to issue regulations related to the new bereavement leave component of Paid Family Leave, it might have lacked authority to place further limitations on those parameters.

As the Paid Family Leave Program operates as a (primarily) employee-funded insurance benefit, employees would have had to contribute more out of their paychecks to fund the insurance premiums. As with the original Paid Family Leave categories, this long-term bereavement leave would have been difficult for the State to price effectively, potentially leading to over- (or more likely) under-funding in the first years.

Business Community Opposition

The Business Council of New York led the efforts of more than 20 prominent business groups, including many chambers of commerce, seeking Governor Cuomo’s veto of this legislation.

This consortium’s August 2, 2018 letter to the Governor’s office noted that the Legislature had rebuffed efforts to include more reasonable limits on paid bereavement leave:

“The Business Council’s recommendations for reasonable parameters on any expansion of PFL to bereavement were rejected by both the Senate and Assembly sponsor. These included limiting bereavement leave to several weeks, to be used within 180 days of a family member’s death.”

This letter also expressed concern “that the Legislature is proposing a dramatic expansion of the Paid Family Leave Act that has only been in effect for just over six months [now one year], and before any usable data is available regarding utilization or costs. Employers, the state, insurers and employees are still working to understand and implement the current law.”

Finally, these business groups noted that fully-paid bereavement leave is already a standard employee benefit, though often only for a few days; and that “Employers understand that to attract and retain the best talent available they need to be there for their employee[s] in their time of need and will continue to do so without another burdensome government mandate.”

Governor Cuomo’s Veto

Although business groups more vocally object to this legislation, Governor Cuomo publicly relied almost exclusively on supposed worker concerns in his veto message:

“Workers’ organizations such as A Better Balance have expressed significant concerns to me about this bill, and, as difficult as it is, I must heed their concerns.”

A Better Balance prides itself on having been active in supporting New York’s original Paid Family Leave law. But the organization posted a call to action on its website encouraging the Governor to veto the bereavement leave amendment. It emphasized the anticipated high costs to workers:

“Costs – entirely borne by workers – will be extremely high. Because paid family leave is 100% worker funded, this bill would impose potentially very high, uncalculated costs on New York workers—costs that will fall especially heavily on low-income workers.”

Governor Cuomo repeated that concern, while otherwise sharing some raised more specifically by the Business Council. For example, the veto memorandum notes: “Second, there is no stated limit on when leave can be taken. Unlike bonding leave, which is limited to 12 months from the qualifying event, no such limit would exist here. This drafting failure could lead to claims being made well beyond a year from death.”

The Future of New York Bereavement Leave

Employers should not expect this issue to disappear in 2019. Governor Cuomo concluded his veto message by commenting: “I am committed to working with the Legislature in the coming legislative session to resolve these issues for the benefit of hardworking New Yorkers.”

What might an alternative New York bereavement leave law look like?

New York Legislators will have to decide whether to continue to pursue bereavement leave through the Paid Family Leave Program or another path.

PFL offers the benefit of being an existing, employee-funded system. But any addition of bereavement leave must be much more narrowly drafted than it was in the 2018 legislation. The lawmakers should separately address issues such as length of leave available per death, total leave available per year, timing of leave, etc. And 10 or 12 weeks projects as an unaffordable and overly burdensome duration. The Legislature should also consider whether the same leave parameters should apply equally to small and larger employers.

The Legislature could alternatively seek to impose a mandatory paid or unpaid bereavement leave requirement outside of the Paid Family Leave Program. However, it would then be more difficult to effect an employee-paid system. Requiring employers to offer more than a couple of days of paid bereavement leave would raise significant opposition. And any requirement that small employers pay employees not to work could be financially crippling.

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