Effective October 29, 2010, New York employers that offer bereavement leave to employees following the death of a spouse, or the child, parent, or other relative of a spouse, may not discriminate against, and must extend the same privileges to, employees in same-sex relationships. Thus, if an employee suffers the death of a same-sex partner, or of the partner’s parent, child, or other relative, the employee will be statutorily entitled to the same type of unpaid leave available to employees in statesanctioned marriages.
This new law does not require employers to provide bereavement leave to employees; rather, it merely requires that those employers that currently provide such leave to married employees extend the privilege to employees in committed same-sex relationships. A committed same-sex relationship is defi ned as one wherein the partners “are fi nancially and emotionally interdependent in a manner commonly presumed of spouses.” Unfortunately, the law provides little guidance for employers to use in determining whether a relationship satisfi es this rather vague standard. From a practical standpoint, inquiring into the particular and presumably private details of an employee’s domestic life in order to determine whether or not to allow them to take a few days of bereavement leave is probably unwise in many instances. Not only will the employer appear insensitive, and likely learn more about an employee’s personal life than could be conceivably necessary, but the employer runs the risk of a discrimination claim. Of course, if there are clear indications of abuse of the leave policy, or other readily apparent reasons why the employee may not be eligible, the employer should absolutely request additional information, preferably after consulting with counsel.
As the law goes into effect later this month, employers currently offering bereavement leave, or those that plan to do so, should update and/or revise their employment handbooks in accordance with the new bereavement leave legislation.