Mandatory Bereavement Leave and Gender Expression/Sexual Orientation Protection Bills Working Their Way Through Arizona’s Legislature

By Craig J. O'Loughlin

Two important employment-related bills have been introduced in the House of Representatives of Arizona’s legislature. The first, HB2116, would make bereavement leave for the death of a child mandatory for any employers that are already subject to the Family and Medical Leave Act (FMLA). The second, HB2335, is part of a larger bill that also deals with workplace safety and union participation matters that would add gender, gender identity or expression, sexual orientation and marital status as protected classes for which employees cannot be discriminated against by employers having at least 15 employees.

HB2116 proposes to create a new section of the Labor Code (23-206) that would require employers that are already covered by the FMLA to grant FMLA-eligible employees up to two work weeks of unpaid bereavement leave during any 12-month period to attend the funeral or burial service of the employee's "child" (defined as a person of any age who is a biological, adopted, foster, step or loco parentis child, including a legal ward child of an eligible employee). Such leave would also be available for eligible employees to make any arrangements resulting from the death of the employee's child and/or grieve the death of the employee's child. If more than one child of an eligible employee dies within a 12-month period, the total amount of leave employers would be required to grant is increased to six work weeks. Eligible employees would have the option to use various forms of paid leave benefits during any such bereavement leave. Employers would be able to verify eligibility through requests for reasonable documentation (death certificate, published obituary), but would be prohibited from taking any adverse employment action against an eligible employee who uses bereavement leave. Penalties of $500 for a first violation and up to $1,000 for each subsequent violation would apply.

HB2335, in addition to creating employment protections for employees alleging workplace safety issues or participating in labor unions or related activities, would modify existing sections of Arizona’s Civil Rights Act (which applies to employers having at least 15 employees) to include in the list of protected classes: gender, gender identity or expression, sexual orientation and marital status. Employees in each of these classes would be afforded the same discrimination and retaliation protections that have previously been required for other protected classes such as race, color, religion, sex, age, national origin and disability.

Arizona employers subject to the FMLA and/or the Arizona Civil Rights Act should prepare themselves for the potential passage of these important bills, including by speaking with legal counsel as to applicable scope and requirements. We will continue to monitor the progress of these bills and provide updates through additional postings.