California Establishes New Leave for Reproductive Loss

​On Oct. 11, California Gov. Gavin Newsom signed a bill into law allowing for up to five days of time off work for reproductive-related losses.

Senate Bill 848 makes it an unlawful employment practice for an employer to refuse to grant an eligible employee's request to take up to five days of unpaid leave following a reproductive loss event.

Previously, California law required employers to provide bereavement leave upon the death of an employee's family member. Reproductive-related losses, however, largely remained unaddressed. Such losses are a common occurrence with more than 1 in 4 pregnancies resulting in miscarriage, and they may result in post-traumatic stress disorder (with almost 1 in 3 women developing pos-traumatic stress disorder after a miscarriage).

What Does this New Leave Require?

SB 848 acts as a subset of California's bereavement leave law and increases an employee's leave entitlements for a reproductive loss event, which is defined 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." Covered employers must provide up to five days of leave for reproductive loss events.

The law limits the amount of reproductive loss leave to a maximum of 20 days within a 12-month period.  Thus, although an employee may be subject to multiple reproductive loss events in a 12-month period, an employer is not required to provide more than 20 days of reproductive loss leave.

Like many other California leave laws, SB 848 prohibits employers from retaliating against any employee for requesting or taking leave for a reproductive loss.

California employers with five or more employees are covered under the law. Only employees who have worked for the employer for at least 30 days are eligible for reproductive loss leave.

Subject to narrow exceptions when an employee takes applicable leave under state or federal law, eligible employees must take the leave within three months of the event triggering the leave (i.e., reproductive loss events), but need not be taken on consecutive days.

Leave under the statute is unpaid, unless the employer has an existing policy requiring paid leave. Eligible employees may choose to use any accrued and available paid sick leave or other paid time off for reproductive loss leave.

SB 848 does not contain any provision permitting employers to request any documentation in connection with reproductive loss leave.

In light of this new leave entitlement, steps that a California employer may wish to take include:

• Updating their employee handbooks and/or leave policies to incorporate this new leave entitlement.
• Training management, supervisors, and HR on this new leave law.
• Determining whether reproductive loss leave will be paid pursuant to any existing employer-provided leaves or policies.
  

Rick Reyes, Joy C. Rosenquist, and Adam Fiss are attorneys with Littler in California. ©2023. All rights reserved. Reprinted with permission.