New law requires employers to grant leave for 'reproductive loss'

On Oct. 10, 2023, California Governor Gavin Newsom signed Senate Bill 848, which requires that employers of five or more employees provide each of their employees with up to five days of reproductive loss leave after each “reproductive loss event” that the employee experiences. The leave is up to a maximum of 20 days within a 12-month period, which the employee may take nonconsecutively. Effective Jan. 1, 2024, this new law adds Government Code Section 12945.6 and provides protected leave not just to pregnant workers, but also to spouses and domestic partners of pregnant persons, and workers who would have been parents through adoption, surrogacy, or artificial insemination. To qualify, the employee must have been employed for at least 30 days before starting leave and, generally, must complete their reproductive loss leave within three months of the reproductive loss. If the employee goes on another type of leave prior to or immediately after a reproductive loss, the employee can still take reproductive loss leave within three months of the end of other leave. While reproductive loss leave is not required to be paid, employees may elect to use their accrued and otherwise unused vacation, personal leave, accrued and available sick leave, or paid time off. Notably, failing to grant a covered leave is an unlawful employment practice.

Reproductive loss is broadly defined under the new law. A “reproductive loss event” can occur over one or more days and includes the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction. A failed adoption includes a dissolution or breach of an adoption agreement, or an adoption agreement that is not finalized because it is contested, and leave is available to employees who would have been the parents of the adoptee if the adoption had been successful. Similarly, under the law failed surrogacies include the dissolution or breach of a surrogacy agreement, or failed embryo transfer, and leave is available to employees who would have been parents of the surrogate child. For the woman who experienced a miscarriage or stillbirth, leave is available to her, her spouse or domestic partner, or “another individual” if that person would have been a parent as a result of the pregnancy. Similarly, unsuccessful assisted reproductions refer to unsuccessful rounds of intrauterine insemination or assisted reproductive technology procedures, and leave is available for the person receiving treatment, their spouse or domestic partner, or “another individual” if that person would have been a parent as a result of the pregnancy. Although the state has enacted numerous laws protecting abortion access since Dobbs v. Jackson Women’s Health Organization (2022) 597 U.S. 215, this new law is silent on whether an abortion would be a covered “reproductive loss event” entitling employees to this particular type of leave.

The reproductive loss leave law was enacted only one year after its sister statute, California’s bereavement leave law, codified as Government Code Section 12945.7. Employers of five or more employees should work with their counsel to ensure that their policies and practices adequately cover both types of leave. Like the reproductive loss leave statute, the bereavement leave statute allows an employee who has been employed for at least 30 days to take five days of leave, consecutively or nonconsecutively, within three months of the death of a family member. The bereavement leave statute defines a “family member” as a “spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law.” Similarly, the bereavement leave is not required to be paid, unless the employee uses accrued and unused vacation, personal leave, sick leave, or compensatory time off that is otherwise available.

Both laws recognize the deep physical and mental health consequences of loss, However, the reproductive loss and bereavement statutes differ in some key respects. Under the bereavement statute, employees are required to provide documentation regarding the death of a family member within 30 days of the employers’ request, which may include, among other things, a death certificate, published obituary, written verification of death, burial or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency. The reproductive loss statute has no such provision, instead warning that the “employer shall maintain the confidentiality of any employee requesting leave under this section. Any information provided to the employer pursuant to this section shall be maintained as confidential and shall not be disclosed except to internal personnel or counsel, as necessary, or as required by law.” The bereavement statute also excludes state employees covered by Government Code Section 19859.3 and does not apply to collective bargaining agreements meeting certain criteria.

To comply with both the reproductive loss and bereavement leave statutes, employers should work with experienced employment counsel to revise their leave policies and ensure that their human resources and supervisory personnel are appropriately trained as quickly as possible. Failing to enact and properly administer compliant policies and procedures could result in liability for, among other things, inappropriate denial of required leave, actions that could be interpreted as discrimination, harassment, or retaliation for requesting protected leave, or improper disclosure of private medical information to persons who arguably should not have had access to it. Compliance in some circumstances may be tricky and require consultation with experienced employment counsel.