Background of the legislative proposal

With the intended introduction of a statutory right to paid bereavement leave in family situations with minor children, the Dutch Work and Care Act will have to be amended (Act Introduction of Bereavement Leave).

The legislative proposal for the Act Introduction of Bereavement Leave originates from the observation that the current legal framework offers insufficient support to employees faced with a profound loss. The current legislation only offers short-term emergency leave in the event of a death, which is meant for the period between the passing and the funeral. Consequently, many employees feel compelled to take holidays, call in sick or take unpaid leave to cope with the loss in the period thereafter. These solutions however do not provide structural recognition for the situation and may increase the pressure on those who are grieving. In addition, the lack of a statutory regulation means that it may be unclear to employers what is expected of them when an employee faces such a loss. The initiators of the legislative proposal believe that there is a ‘gap’ in the legislation regarding family bereavement leave. This situation is considered to be unbalanced in comparison to the very extensive leave arrangements for pregnancy, childbirth and parenthood.

Various studies, including the CNV study and Panteia study, as well as the advice of the Social and Economic Council (SER) demonstrate that there is broad public support for the introduction of paid bereavement leave. While the Panteia study shows that many workplaces handle grief sensitively, it also emphasizes that improvement for handling grief is necessary. A statutory right to paid bereavement leave would provide necessary space for employees, without affecting their salaries or accrued leave days.

The SER advice notes a lack of consistency in supporting grieving employees, leading to reliance on leave types not intended for such circumstances. This can result in undue costs and procedures for employers while failing to recognize the actual leave’s purpose for employees. Both employees and employers could therefore benefit from a statutory leave provision.

According to the initiators of the legislative proposal, creating a legal basis for bereavement leave, specifically aimed at working parents who experience the loss of a partner or minor child, should contribute to a more balanced leave system, better support for bereaved employees and the promotion of sustainable employability in the workplace.

Content of the legislative proposal

As mentioned above, the legislative proposal introduces a statutory right to paid (100% wage continuation) bereavement leave for employees with a family with minor children, of whom a partner or minor child passes away. The leave entitlement shall consist of at least one working week. This means that full-time employees are entitled to at least five days paid leave. This is a minimum standard, from which the employer can only deviate in favour of the employee. Employers remain responsible to provide tailor-made leave for bereaved employees. Furthermore, the employee may take the leave in a flexible form from the day after the funeral until one year after the passing of the partner or minor child.

The legislative proposal also includes a reporting obligation for employees. This means employees must notify their employer in advance of taking bereavement leave. In this notification, the employee specifies the reason for the leave, its start date, and its (expected) duration. If prior notice is not possible due to certain circumstances, employees must inform their employer as soon as reasonably possible. The bereavement leave starts on the date specified by the employee when notifying the employer about taking the bereavement leave, unless the employer immediately objects to such leave, invoking a compelling business or service interest that reasonably outweighs the employee's need for leave. Lastly, the legislative proposal clarifies that the hours taken as bereavement leave cannot be deducted from holidays arrangements as agreed upon between the employee and employer.

Advice of the Council of State

The Advisory Division of the Council of State (Raad van State) published its advice on the initiative proposal on 28 October 2024. The Council of State acknowledges the need for bereavement leave and its value as a basis for tailor-made agreements between employers and employees, but also raises several critical comments on the proposal. For instance, the introduction of a separate regulation for bereavement leave will make the leave system more complex, while the aim should be to simplify administration. In addition, the Council of State is critical towards the target group and advises a reconsideration in this regard. After all, bereavement is not limited to employees in a family with minor children only. The Council of State also asks for further justification of the necessity and effectiveness of the proposed minimum leave entitlement of one working week, because in practice this might be perceived as a maximum standard. The Council of State therefore recommends amending the current legislative proposal on these points.

Next steps

The advice of the Council of State is currently being assessed by the initiators of the legislative proposal. They may amend the legislative proposal based on this advice. The advice and any amendments will be included in a report sent to the House of Representatives. The legislative proposal will then have to be considered and adopted by the House of Representatives and subsequently by the Senate (Eerste Kamer).

We will continue to closely monitor developments concerning the legislative proposal. Should you have any questions following this news blog, please do not hesitate to contact us. We are happy to assist you.