What Employers Need to Know about California’s New Reproductive Loss Leave Law

It was Friday July 5, 2013.  I was sitting in my doctor’s office.  I was desperately hoping I was fine, but had a sinking feeling I was having a miscarriage.  The doctor’s office was packed because it was closed the day before.  I was anxious, scared, and had a current of emotions coursing through me. If that wasn’t enough to worry about, a partner I was working for at my law firm at the time (not LCW) kept emailing me asking when I could meet that day to discuss a case. While I did not want him thinking I was making excuses and secretly taking off for the long weekend, I did not feel comfortable saying anything more than I was at a doctor’s appointment.  He kept asking me when I would be in, but I had no idea how long it would take, and felt that if my suspicions unfortunately proved to be true, I would not be mentally or physically able to go into the office that day.  In the end, I was having a miscarriage, I did not go into the office, and told him I was sick and could not meet.  I did however go on a business trip with that partner on Monday and pretend everything was fine, when it certainly was not.

Now with recently enacted legislation, California employees will have the right to leave for reproductive loss that will hopefully avoid them having to face the pressure of working when suffering a miscarriage or other reproductive loss.  On October 10, 2023, Governor Newsom signed Senate Bill No. 848 which requires employers with five or more employees to provide up to five days of Reproductive Loss Leave for employees starting January 1, 2024.  California is the second state to provide employees with Reproductive Loss Leave.

Requirements of Reproductive Loss Leave

Who does the law apply to? Employers with five or more employees and the state and any political or civil subdivision of the state, including, but not limited to, cities and counties.

Who is eligible to take reproductive loss leave?  An employee that has worked for the employee for 30 days and has suffered a reproductive loss event.  A “reproductive loss event” is defined as “the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction.” “Assisted reproduction” “means a method of achieving a pregnancy through an artificial insemination or embryo transfer.” (Cal. Govt. Code sections 12945.6 (a)(1) and (7).)

How much leave is an employee able to take, and when can they take the leave?  The employee is able to take up to five days of leave, which must occur within three months from the reproductive loss event.  However, if the employee uses Pregnancy Disability Leave (PDL) or leave under the California Family Rights Act (CFRA), the leave can commence within three months from the end of that leave.  The leave can be on nonconsecutive days.

Can employees take Reproductive Loss Leave more than once?  Yes.  If an employee experiences more than one reproductive loss event within a 12-month period, an employer must allow the employee to take up to 20 days of Reproductive Loss Leave within a 12-month period.

Are employees required to be paid on leave?  Reproductive Loss Leave shall be taken pursuant to any existing applicable leave policy of the employer.  In the absence of a leave policy, Reproductive Loss Leave is unpaid.  Employees can use sick, vacation, or other available paid leave.

Are employees required to submit documentation?  No, the law does not require employees to submit any documentation or medical certification to take Reproductive Loss Leave.

Anything else employers should know about Reproductive Loss Leave?  Yes!

1. The law requires confidentiality.  All information employees provide to request Reproductive Loss Leave should be kept confidential and only shared with internal personnel or counsel as needed.
2. Like with PDL and CFRA, employers may not interfere with an employee’s right to take Reproductive Loss Leave, or retaliate against employees for requesting or taking this leave.
3. Employees should create written policies providing Reproductive Loss Leave to employees.
4. It should be understood that employees undergoing a miscarriage, failed adoption, or other reproductive loss event are suffering mentally and/or physically.  Employers should provide notice to all employees on the availability of Reproductive Loss Leave.  Create a workplace that is open and inclusive and where employees can feel secure in their jobs and not fear retaliation from requesting or taking Reproductive Loss Leave.  Employers should be supportive of employees requesting this leave, not pressure them to work through it, and should also be understanding that allowing employees this leave to heal or grieve, will allow employees to come back to work more focused and able to perform at their best.