No Leave to Grieve: How Misfit Frameworks and America's 'Grief Tsunami' Call for Better Bereavement Policy

The COVID-19 pandemic fueled America’s recent death surge, making 2021 the deadliest year on record in the United States. Amid massive losses – referred to as an impending “grief tsunami” - scholars claim that the American workplace remains unprepared for such a wave of grief. Likewise, American law is ill-equipped for grief in the workplace. Bereavement, while medically “normal,” lacks a substantial foothold in workplace benefits and in the law. Currently, organizations bear the burden of developing their own policies. Often, where available, these policies remain insufficient to accommodate the myriad legal and emotional complexities associated with the loss of a loved one. And in the event of an adverse action related to bereavement or grief-triggered behavior, workers and organizations lack a defined legal framework for litigation. Without clear options, bereft employees who believe they have suffered adverse action may seek protections under the FMLA, Title VII, or the ADA; these efforts yield absurd, conflicting, or simply callous results. In some cases, these frameworks promote poor workplace policy, as they encourage organizations to minimize communication to avoid risk of estoppel in favor of the employee. Notably, these benefits or litigation options, however insufficient, apply near-exclusively to employees; there currently exist few provisions for the increasing number of independent workers within the American workforce. However, there exist budding state legislative options which may serve to address the bereavement problem. Local legislators may pull from these examples to craft comprehensive bereavement frameworks, available to all types of workers, in a manner which may reduce organizational burdens and serve to address America’s swelling wave of grief.