Effective January 1, 2024, California requires employers to provide employees with up to five days of leave following a reproductive loss event. This is the effect of Senate Bill 848 (SB848), which is now Section 12945.6 of the California Government Code.
The new law generally applies to all California employers with five or more employees.
Employees are eligible for this type of leave after they have been employed for at least thirty days and have suffered a reproductive loss event.
What is a “reproductive loss event”?
The new law defines “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” (i.e., an unsuccessful round of fertility treatment like in vitro fertilization or another assisted reproductive technology procedure).
Employees may experience multiple reproductive loss events in a year and take multiple periods of leave. An example would be an employee who unsuccessfully attempts to adopt a child twice in the same year would be entitled to take two separate periods of reproductive loss leave.
Employees are now eligible for leave in the following situations:
- Failed Adoption: applies to an employee who would have been a parent of the adoptee child if an adoption had been successfully completed. Adoption could fail through dissolution or breach of an adoption agreement or an adoption that was not finalized because it was contested by another party.
- Failed Surrogacy: applies to an employee who would have been a parent of a child born as a result of the surrogacy. This can occur through the dissolution of a surrogacy agreement with a third-party surrogate or because of a failed embryo transfer to the surrogate.
- Miscarriage: 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.
- Stillbirth: 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.
- Unsuccessful Assisted Reproduction: an unsuccessful round of intrauterine insemination or another failure of an assisted reproductive technology procedure. 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.
Implementation
The new law provides flexibility for using reproductive loss leave. Employees may use up to five days of leave following any reproductive loss event. The days do not have to be taken consecutively.
The new law imposes a cap. Employees cannot claim more than 20 days of reproductive loss leave in any 12-month period, regardless of the number of events experienced, but they must use their leave within three months of the event triggering the leave entitlement.
Employer Obligation and Policies
Covered employers must comply with the new law and provide the necessary leave benefits as outlined. If an employer does not have an existing policy providing paid leave for reproductive loss, the leave required by the new law may be unpaid. However, employees may use their accrued and available paid leave, such as vacation days, personal leave, sick leave, or compensatory time off.
Protection Against Retaliation and Interference
The new law prohibits employers from retaliating against employees who request or take reproductive loss leave. Illegal retaliation would include any “adverse employment action,” such as termination, demotion, or discrimination. Additionally, employers are forbidden from interfering with an employee’s right to reproductive loss leave or attempting to deny the leave.
Confidentiality and Distinct Rights
Recognizing the sensitive nature of reproductive loss, the new law requires that employers maintain strict confidentiality in response to an employee’s request for this leave. Information related to such leave requests must be handled discreetly, shared only with necessary internal personnel or legal counsel, and disclosed only as required by law.
Takeaway for California Businesses and Business Owners
It is important for employers to be aware of this new protection afforded to their employees and understand the circumstances when their employees qualify for the applicable reproductive loss leave. Employers should therefore review and update their policies and employee handbooks to address this new law.
Michael Garcia is an attorney with Dunn DeSantis Walt & Kendrick. Garcia’s practice is in civil litigation with a focus on representation of businesses and business owners, particularly in employment law.
Dunn DeSantis Walt & Kendrick provides a broad spectrum of legal services to businesses of all sizes, from small, local start-ups and non-profits to large, national companies.
You can find additional information and resources related to helping business owners and their businesses on the DDWK website.
