Bereavement leave changes

Death is an unfortunate reality of life, and it is human nature to need time to grieve and mourn the passing of a loved one. Jack Rainbow, Solicitor at Dundas Street Employment Lawyers, looks at New Zealand’s employment laws relating to bereavement.

Calls to update our bereavement laws have been increasing. Questions are being raised about whether minimum bereavement leave entitlements are fit for purpose, including whether they encompass the full range of bereavements and sufficiently accommodate differing cultural practices.

The law as it stands

Current law is reasonably prescriptive about when an employee becomes entitled to bereavement leave, how much leave they are entitled to, and which bereavements they can take leave for.

Under the Holidays Act 2003, employees are entitled to paid bereavement leave after they have completed six months’ continuous service with their employer. 1 Once eligible, the Act creates two categories of entitlement:

1. Three days’ bereavement leave following the death of a close family member, which is limited to a spouse or partner, parent, child, brother or sister, grandparent, grandchild or spouse or partner’s parent.

2. One day’s bereavement leave if the employer accepts the employee has suffered a bereavement as a result of any other person’s death.

In deciding whether an employee should be provided with the second category of leave, an employer must consider several factors as set out in the legislation:

• the employee’s closeness to the deceased

• the degree of responsibility the employee has for the funeral arrangements

• any cultural responsibilities the employee may have in relation to the death.

The regime’s rigidity often means employees do not receive sufficient support or time to grieve following bereavement.

The untimeliness of death

Death does not wait for the most convenient time to occur. It can be sudden and unexpected, and it will often require a person to drop everything at a moment’s notice and for some time.

This already difficult time is particularly hard for new employees, who are not necessarily entitled to paid leave of any kind from the outset of employment. That can mean individuals have limited options at a point where they need time and support to grieve.

In practice, many employers understand and provide some form of paid leave or an advance on leave entitlements. However, this is not always a given, and some employees do miss out.

Culturally appropriate?

The narrow remit of bereavement leave entitlements gives rise to genuine and important questions about how well different cultural practices, particularly regarding familial relationships and funeral or ceremonial arrangements, are accommodated within our increasingly diverse workplaces.

Different cultures celebrate and grieve bereavements in a variety of ways, including lengthy funeral ceremonies, depending on the closeness of the relationship with the deceased, and the requirements of fundamental cultural and religious customs and traditions around death.

Existing entitlements come from a time when a monocultured and Eurocentric view was prevalent and have not changed to reflect our very different current attitudes. Existing minimum entitlements are now insufficient for many to properly process their loss and attend to important funeral customs or rituals.

The most obvious example of this is tangihanga – Māori funeral rites. Tangi often take place over several days and can place significant pressure on employees who need to take extended leave from work. If the deceased is an aunt or a cousin, the issue becomes more acute, because those relationships do not fall within the first category of entitlement.

Cross-cultural confusion can occur when employers are unaware of the differing cultural expectations their employees face and should be entitled to take part in. This can have a significant impact on an employee’s wellbeing in already sensitive circumstances.

The impact can also be particularly damaging where an employee must prove to their employer that they have suffered a bereavement, or if evidence of the death itself is required.

Miscarriage and stillbirths On a more positive note, the Government has recently addressed at least some of the uncertainty within, and unfitness of, our bereavement leave regime.

In March 2021, Parliament unanimously passed the Holidays (Bereavement Leave for Miscarriage) Amendment Act 2021, which clarified that an employee is entitled to three days bereavement leave following a miscarriage or stillbirth. This addresses the difficult and upsetting debates that arose around the extent to which the definition of ‘child’ within the Holidays Act encompassed bereavements of this kind and that, for perhaps obvious reasons, has not made its way before the Employment Court.

Future reforms

It appears that at least some of the other problems posed by our existing bereavement leave law have been recognised, and change is on the horizon.

The Holidays Act Taskforce, which was set up by the Government to provide a comprehensive review of the Holidays Act, has released its recommendations. The Government has in turn accepted these in full, although an implementation date, and the legislative amendments themselves, have yet to be released.

The recommendations deal with all aspects of the Act, but, as far as bereavement leave is concerned, minimum entitlements will shortly:

• provide employees with paid bereavement leave from their first day of employment

• outline a new test for determining a likely broader eligibility for bereavement leave, with bereavement leave being provided to all employees with agreed hours and an expectation of continuous employment

• provide any employees who do not meet the new eligibility test with bereavement leave entitlements after six months’ continuous service.

Critically though, the recommendations will extend the list of relationships to which bereavement entitlements apply, to reflect a far more modern understanding of family.

This means the three-day bereavement leave category will be expanded to include:

• stepfamily members

• additional family members by marriage (sons, daughters, brothers-in-law and sisters-in-law)

• cultural family groupings (eg, whāngai relationships – adoption and fostering)

• aunts, uncles, nieces and nephews.

The future

The Taskforce recommendations go some way towards addressing the concerns our bereavement leave regime raises, particularly by better recognising the impact death has on individuals and the many relationships that make up modern families.

Only time, and inevitably, trial and error, will tell whether or not these reforms go far enough. Concerns still exist around whether such a prescriptive minimum-focused regime is the right approach for dealing with something as complex as human relationships and bereavements, but it is a good start.

Jack Rainbow, Ngāti Tūwharetoa, Te Arawa (Tapuika), is a solicitor at Dundas Street Employment Lawyers. He provides legal advice to both public and private sector clients, including in relation to disciplinary processes, investigations and dispute resolution. Jack also volunteers at Community Law and previously worked at a law firm specialising in Māori legal issues, particularly Waitangi Tribunal claims.