SB 848 – Entitles Eligible Employees To Leave For Reproductive Loss

Effective January 1, 2024, Senate Bill 848 (SB 848) requires the following employers to provide reproductive loss leave to eligible employees under specified circumstances:

1. Any person who employs five (5) or more persons to perform services for a wage or salary; and
2. The state and any political or civil subdivision of the state, including, but not limited to, cities and counties.

An employee is eligible for reproductive loss leave after at least 30 days of employment.  An eligible employee is entitled to take up to five days of reproductive loss leave (which may be taken nonconsecutively) per reproductive loss event, up to a total amount of 20 days of reproductive loss leave within a 12-month period.

A reproductive loss event means “the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction” (i.e., an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure).  Employees under the following circumstances related to a reproductive loss event are eligible for reproductive loss leave:

• A failed adoption event applies to an employee who would have been a parent of the adoptee if the adoption had been completed.
• A failed surrogacy event applies to an employee who would have been a parent of a child born as a result of the surrogacy.
• A miscarriage event applies to an employee who experienced a miscarriage, who is the current spouse or domestic partner of a person who experienced a miscarriage, or who would have been a parent of a child born as a result of a pregnancy that resulted in miscarriage.
• A stillbirth event applies to an employee whose pregnancy resulted in a stillbirth, who is the current spouse or domestic partner of a person whose pregnancy resulted in a stillbirth, or who would have been a parent of a child born as a result of a pregnancy that resulted in stillbirth.
• An unsuccessful assisted reproduction event applies to an employee who experienced such event, who is the current spouse or domestic partner of a person who experienced such event, or who would have been a parent of a child born as a result of a pregnancy had the assisted reproduction been successful.

Reproductive loss leave must be taken within three (3) months of the reproductive loss event.  However, if, prior to or immediately following a reproductive loss event, an employee is on or chooses to go on Pregnancy Disability Leave (Gov. Code, Section 12945), leave under the California Family Rights Act (Gov. Code, Section 12945.2), or any other leave entitlement under state or federal law, the employee must complete their reproductive loss leave within three (3) months of the end date of the other leave.

Reproductive loss leave is taken pursuant to any existing applicable leave policy the employer may have.  If the employer does not have an existing applicable leave policy, the reproductive loss leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

SB 848 requires employers to maintain employee confidentiality relating to requests for and any information received concerning reproductive loss leave, and prohibits employers from disclosing any such information except to internal personnel or counsel, as necessary, or as required by law.  SB 848 is silent on whether an employer may request documentation supporting an employee’s need for reproductive loss leave.

Under SB 848, it is an unlawful employment practice for an employer to refuse to grant a request from an eligible employee to take reproductive loss leave, or for an employer to retaliate against an eligible employee because the employee exercised the right to reproductive loss leave or gave information or testimony as to reproductive loss leave.  It is also an unlawful employment practice for an employer to interfere with, restrain, deny the exercise of, or deny the attempt to exercise the rights afforded to employees under the reproductive loss leave law.

(SB 848 adds Section 12945.6 to the Government Code.)