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Changes to Bereavement Leave

21 June 2021 | Brad McDonald
Changes to bereavement leave Godfreys Law

Life can get difficult after a loved one passes away. Especially if you receive the worst possible news while pregnant or expecting a baby. This is why the law regarding bereavement leave is changing. Employees will soon have the right to take paid bereavement leave in the unfortunate event of a miscarriage or stillbirth of their child.


What is bereavement leave?

Bereavement leave is paid leave that all employees can take if someone close to them dies. Bereavement leave is meant to allow employees time to grieve, as well as make any arrangements relating to the bereavement, such as sorting out Estate matters or attending funerals. Under the recent changes to The Holidays Act (2003), bereavement leave will also be extended to people grieving a miscarriage or stillbirth.


All employees (permanent, fixed-term, part-time and casual) are entitled to bereavement leave if:

  • they have worked for the employer continuously for six months or:
  • they have worked for the employer for six months for
  • an average of 10 hours per week, and
  • at least one hour in every week or 40 hours in every month.

When can you take bereavement leave?

An employee can take their bereavement leave in the following circumstances:

  • The employee’s immediate family member dies. Generally this means your parents, child, partner or spouse, grandparents, grandchildren, brother, sister and parents-in-law.
  • The employee has a miscarriage or stillbirth
  • Another person has a miscarriage or stillbirth and the employee: 
  • is the person’s partner
  • is the person’s former partner and would have been a biological parent of a child born as a result of the pregnancy
  • had agreed to be the primary carer of a child born as a result of the pregnancy (e.g. through a formal adoption or a whangai arrangement)
  • is the partner of a person who had agreed to be the primary carer of a child born as a result of the pregnancy.


Employees are entitled to bereavement leave every 12 months as long as they meet the above criteria. Employees need to tell their employer as soon as possible after a loved one has passed away, so both parties can make bereavement leave arrangements.


Importantly, bereavement leave does not need to be taken consecutively and can be taken long after the bereavement. For example, Employment New Zealand gives the scenario where an employee takes two days bereavement leave immediately upon the death of a loved one, then another day a year later to attend the unveiling of a headstone.


How are bereavement leave entitlements changing?

Under changes to the law, employees will be able to take up to three days’ paid bereavement leave if they, or a loved one suffers a miscarriage or stillbirth.


Parents having a child through surrogacy or adoption are also eligible, if the pregnancy ends by miscarriage or stillbirth.
The law change does not provide bereavement leave in the case of terminations. The mother may be able to take sick leave, depending on the circumstances.


What should employers do around bereavement leave?

The death of a loved one can be an extremely challenging time for people, especially in the case of a lost baby. Sensitivity and discretion is especially important when an employee asks for bereavement leave.


Many employers choose to offer more than the minimum requirement for bereavement leave. As well as being a kind and generous thing to do at a sensitive and challenging time, the employee is unlikely to be focused on work if they are grieving, and it could affect the morale of other staff around them.


If an employer suspects an employee is taking advantage of bereavement leave to take extra time off they can request proof, such as a death certificate or statutory declaration. However, this is an extremely sensitive topic, and employers should only request proof in suspicious circumstances. Additionally, Employment New Zealand is very clear that proof of pregnancy is not required in the case of stillbirths or miscarriages.


Annual leave or bereavement leave?

If an employee wants to take additional bereavement leave or hasn’t yet met the six month criteria, their employer can, at their discretion, allow them to take the bereavement leave in advance or use their annual leave.


Payment for bereavement leave should only be made if the employee would have normally worked that day, should be made in the usual pay cycle and at the relevant daily rate.


If an employee has scheduled annual leave but suffers a bereavement, an employer must allow them to take bereavement leave instead of annual leave.


Bereavement leave and good faith

We find almost all areas of employment law come back to two issues. First, what does it say in your employment agreement? Second, let’s try to work together in good faith.


To avoid awkward conversations at difficult times, we recommend checking the bereavement leave clause in your employment agreement. If you’re an employer, and your employment agreements do not have a clearly written clause about how and when to take bereavement leave, come and have a chat with our employment team at Godfreys Law. We can recommend tailored changes to update your employment agreement so they remain legal, and everyone knows what’s expected of them.


Working in good faith means having a sincere intention to treat each other fairly and with honesty. If an employee asks their employer for bereavement leave, an employers first question should not be for a death certificate. Likewise, if an employee says they have suffered a miscarriage, an employer cannot ask for proof of pregnancy.


Good faith is the foundation of all employment agreements. If you suspect you’re not being treated fairly and someone is taking advantage of your good faith, stop. Take a deep breath. Don’t react. It’s impossible to take back accusations once they have been made. Contact our employment law team and have a chat before taking action at work.

Godfreys Law is here to help


If you have any questions around taking bereavement leave, or your obligations to your employees with regards to their bereavement leave, contact the employment team at Godfreys Law on 03 366 7469.

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Article by:

Brad McDonald

Partner

Determined to do the best job for his clients, Brad works tirelessly to ensure best outcomes are achieved.

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