On October 11, 2023, California Governor Gavin Newsom signed S.B. 848, which creates a new leave category for reproductive loss. The new law, which piggybacks onto California’s Bereavement Leave law, requires covered employers to grant eligible employees up to five days of leave following a reproductive loss event.
Reproductive Loss Events Defined
Reproductive Loss Events are defined as a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction procedure.
5 Days per Event: The law allows for up to five days per reproductive loss event.
Annual Maximum: The law limits the amount of reproductive loss leave to a maximum of 20 days within a 12-month period. That means if an employee experiences multiple reproductive loss events within a 12-month period, up to five days per event must be provided, but there is a cap of 20 days within a 12-month period.
Time Window: While there are some narrow exceptions, generally, employees must take the leave within three months of the reproductive loss event.
Intermittent Leave: Employees need not take leave for a reproductive loss event on consecutive days.
Unpaid: Reproductive loss event leave is structured as unpaid leave. However, employees may choose to use any accrued and available sick leave, or other paid time off, for a reproductive loss leave. In addition, employers are free to provide all or a portion of the leave on a paid basis.
Documentation: The law does not contain any provision that permits employers to request documentation of a reproductive loss leave. In the absence of any such expressed permission, employers wishing to take a safe route should presume self-attestation to be sufficient.
Anti-Retaliation: SB 848 prohibits employers from retaliating against an employee for requesting or taking leave for a reproductive loss event.
Confidentiality: Employers are required to maintain the confidentiality of any employee requesting reproductive loss leave.
California employers with five or more employees are covered under the law.
Employees who have worked for an employer for at least 30 days are eligible for reproductive loss leave.
Are Spouses/Partners Covered?
The law is clear that a spouse/partner of a person who directly experienced a reproductive loss event is also entitled to this leave. For each type of reproductive loss event, the law includes language that clarifies that a person who would be a parent but for the reproductive loss event is entitled to the leave.
This law becomes effective on January 1, 2024.
Employer Action Items
As with any new employee entitlement, employers should consider the following actions:
- Update the employee handbook to include Reproductive Loss Events as eligible.
- Consider whether reproductive loss leave will be included under any existing employer leave programs that may be paid (and update policies to that effect).
- Train supervisors, managers, and HR teams in the new law, including the confidentiality provisions of the law.