New California Law Provides Employee Leave for Reproductive Loss

On October 10, 2023, California Governor Gavin Newsom signed into law SB 848, requiring covered employers to provide qualified employees with up to five days of protected leave after a “reproductive loss event.” Existing California law protects an employee’s right to bereavement leave following the death of a family member. However, reproductive losses were largely left unaddressed even though somewhere between 10 and 20% of all pregnancies end in miscarriage. SB 848 will fill that gap when it takes effect on January 1, 2024.

Covered Employers and Eligible Employees

SB 848 broadly defines both “employer” and “employee.” Employers covered by the statute include private employers with five or more employees and public employers of any size. On the other hand, eligible employees include any person who has been employed by the employer for more than 30 days.

Triggering Event

To obtain leave under SB 848, an employee must suffer a “reproductive loss event,” defined as “the day or, for multiple day events, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction.” Assisted reproduction includes procedures such as in vitro fertilization (IVF) or intrauterine insemination (IUI). Leave is only available to would-be parents, including the non-birthing parent. Unlike other bereavement leave in California, SB 848 doesn’t allow employers to ask for documentation.

Using Leave

Employers must provide an eligible employee up to five days of leave following a reproductive loss event. While the protected leave need not be used consecutively, it must be used within three months of the qualified event. If an employee suffers multiple reproductive loss events, SB 848 allows for a maximum of 20 days of protected leave over a 12-month period. All protected leave under SB 848 is unpaid unless an employer has an already established policy providing to the contrary. However, an employee taking protected leave must be permitted to use any acquired sick, vacation, or other paid time off.

Confidentiality

As with other bereavement leave in the state, SB 848 requires that the employer maintain the confidentiality of any information provided to it by the employee requesting leave, including the need for such leave.

Next Steps for Employers

California employers should review current leave policies to include this new leave. This can be done by either amending an existing policy or drafting a new standalone policy related to reproductive loss leave. Employers should also train their managers and human resources staff on this newly available leave and ensure they are prepared to address requests from employees while taking the appropriate steps to maintain confidentiality.