By Bradley Levang
On October 10, 2023, Governor Gavin Newsom signed into law Senate Bill 848. This new law creates Government Code section 12945.6, which provides eligible employees with up to five days of unpaid, job-protected leave following a reproductive loss event. SB 848 will take effect on January 1, 2024.
The new law applies to both employers having five or more employees and public employers. Employees who are employed for at least 30 days prior to commencement of the leave are eligible to take reproductive loss leave.
SB 848 defines a “reproductive loss event” as the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction. These reproductive loss events apply to the person as well as the person’s current spouse, registered domestic partner, or other individual who would have been a parent of a child born as a result of the pregnancy.
Eligible employees may take up to five days of unpaid leave under the new law. The days off can be nonconsecutive. However, leave under this law must be completed within three months of the event.
SB 848 creates an entirely new, distinct leave entitlement. Depending on the circumstances, an employee may also be eligible for time off under other existing state or federal leave laws. If an employee takes time off under other existing leave laws, then the employee’s reproductive loss leave must be completed within three months of the end of the employee’s other leave. In other words, reproductive loss leave does not run concurrently with other leave entitlements.
Under the new law, reproductive loss leave is unpaid, unless the employer has an existing policy providing for paid leave. An employee may choose to use any accrued and available vacation, personal leave, sick leave, PTO, or compensatory time off that is otherwise available to the employee during the reproductive loss leave.
An eligible employee may utilize this leave for multiple reproductive loss events. However, the new law allows employers to limit the total amount of reproductive loss leave that an eligible employee may take to no more than a total of 20 days over a 12-month period.
Employers cannot interfere with, restrain, deny, or attempt to deny an employee’s exercise of their rights under the new law. Further, employers cannot retaliate against employees who exercise their right to take reproductive loss leave.
Unlike California’s existing bereavement law, the reproductive loss leave law lacks any explicit provision allowing an employer to request documentation related to requests for reproductive loss leave. Employers must maintain the confidentiality of an employee’s request for reproductive loss leave. An employer must keep the information confidential and must not disclose the information except to internal personnel or the employer’s counsel, as necessary, or as required by law.
Employers should review and update their policies and handbooks to incorporate the new reproductive loss leave. Employers should also make management, supervisors, and human resources aware of the new law allowing for reproductive loss leave, how they should address requests for the new leave and steps to maintain the confidentiality relating to such requests.