Question: I recently learned there is a new type of leave employees may take concerning reproductive loss. Is this true?
Answer: Yes. In October 2023, Senate Bill (SB) 848 was signed by Governor Newsom, which created a new leave for employees who experience a reproductive loss. Effective January 1, 2024, SB 848, codified in California Government Code section 12945.6, requires employers who employ five or more persons to provide up to five days of protected leave following a reproductive loss event for any of the following losses: (1) failed adoption, (2) failed surrogacy, (3) miscarriage, (4) stillbirth, or (5) unsuccessful assisted reproduction. The reproductive loss leave is distinct from bereavement leave and other leaves available under state and federal law. As such employers need to review and update their leave policies and be aware of the following concerning reproductive loss leave:
1. Entitlement to and Duration of Reproductive Loss Leave.
Employees who have been employed by their employer for at least 30 days prior to the commencement of the leave are entitled to take reproductive loss leave. Employees are entitled to take up to five days following the loss. Employees cannot be required to take the five days consecutively, but the leave must be completed within three months of the reproductive loss. Employees can take up to five days for each qualifying reproductive loss, but employers are not required to provide more than 20 days of reproductive loss leave within a 12-month period.
Employees entitled to reproductive loss leave include employees who would have been the parent of (1) the adoptee had the adoption been completed, (2) the child born as a result of surrogacy, a natural or assisted pregnancy (i.e., intrauterine insemination or embryo transfer), or (3) a pregnancy that ended in stillbirth.
2. Overlapping Leave Rights.
Reproductive loss leave is a separate and distinct leave provided to eligible employees in addition to other leaves like Bereavement Leave, Pregnancy Disability Leave and Family Medical Leave. For example, an employee may be taking leave for the employee’s own medical condition or the condition of a family member under the California Family Rights Act (CFRA) or the Family and Medical Leave Act (FMLA) either before or after a reproductive loss event. An employee who experiences a reproductive loss would be eligible for an additional five days of reproductive loss leave within three months of the end of the employee’s CFRA or FMLA leave.
3. The Reproductive Loss Leave May be Paid or Unpaid.
Employers are not obligated to pay employees for reproductive loss leave. However, employers need to permit employees to use any accrued and available sick leave, vacation time, personal time off, or any other paid time off that the employer offers. Employers who have an existing reproductive leave policy but offer less than five days of leave should update their policy to indicate that employees are entitled to five days.
4. Confidentiality and Documentation.
Employers must maintain confidentiality of the identity of an employee requesting reproductive loss leave and all information provided by the employee, except to internal personnel as necessary for business purposes. Although the law is silent regarding an employer’s ability to request documentation from the employee regarding their need for the leave, it is recommended that employers not ask for documentation concerning the reproductive loss. If the employee provides documentation, it must be maintained confidentially.