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Abstract

The COVID-19 pandemic fueled America’s recent death surge: 2021 has become the deadliest year on record in the United States. Scholars and commentators claim that the American workplace re-mains unprepared for the impending “grief tsunami” in the wake of such pervasive loss. Likewise, American law is ill-equipped for workplace grief. 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—and where available, these policies remain insufficient to accommodate the myriad logistical and emotional complexities associated with the loss of a loved one. In the event of an adverse action related to be-reavement or grief-triggered behavior, workers and organizations lack a defined litigation framework. 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 callous results. In some cases, these frameworks promote poor workplace policy, as they encourage or-ganizations to minimize communication to avoid risk of estoppel in favor of the employee. Notably, current benefits or litigation options, however insufficient, apply near-exclusively to employees; there cur-rently 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.

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