Effective January 1, 2024, Senate Bill 848 amended the California Fair Employment and Housing Act. This amendment established that California employees now have a right to “reproductive loss leave.” Reproductive loss leave entitles employees to take time off from work if they endure what the law calls a “reproductive loss event.” A reproductive loss event is defined as a failed adoption, a failed surrogacy, a miscarriage, a stillbirth, or an unsuccessful assisted reproduction.
This latest reason for taking leave from work applies to all employers with five or more employees. The employee can take up to five days’ leave, and the days do not have to be consecutive. Reproductive loss leave must generally be taken within three months of the reproductive loss event.
Frequently Asked Questions
Does this leave only apply if the employee personally suffers a reproductive loss event?
No, all of the recognized events which trigger this right to a leave (a failed adoption, failed surrogacy, stillbirth, unsuccessful assisted reproduction, and miscarriage) apply to both persons who would have been parents if the reproductive loss event had not occurred.
Are employers required to pay employees while they are on reproductive loss leave?
No, reproductive loss leave is unpaid, but employees may use any compensatory time off that is otherwise available to them such as vacation, personal leave, or sick leave.
How soon after a reproductive loss event must employees take reproductive loss leave?
Generally, reproductive loss leave should be completed within three months of the reproductive loss event. Employees are entitled to take leave on nonconsecutive days.
Can employers request medical or legal verification before employees take leave?
It is important that the employer not prevent the employee from taking this leave by requiring any kind of advance confirmation or verification. The legislation expressly states that the employee is entitled to exercise reproductive loss leave without the “employer’s interference or restraint.” However, it is always appropriate for the employer to request medical or other appropriate confirmation after the employee has taken all or part of the leave, and, if the employee cannot provide reasonable confirmation that a reproductive loss event has occurred, the employer should be able to take disciplinary action.
Are employers required to notify employees of reproductive loss leave?
No, the law does not require employers to notify their employees of reproductive loss leave.
Reproductive loss leave needs to be viewed as the latest in an increasing list of mandated leaves in California. Briefly, the other mandated leaves are as follows:
1. The California Family Rights Act (CFRA) entitles employees to take unpaid, job-protected leave for up to 12 workweeks during a 12-month period for the following reasons:
- The birth, adoption, or foster placement of a child.
- Taking care of a spouse, child, parent, or other designated person with a serious health condition.
- The employee’s own serious health condition.
CFRA applies to all employers with five or more employees. Employees are eligible for CFRA leave after working for the same employer for more than 12 months and at least 1250 hours.1
2. California’s Pregnancy Disability Leave (PDL) entitles employees to take unpaid, job-protected leave for up to four months per pregnancy for any disability related to the pregnancy, childbirth, or related medical condition. This applies to all employers with five or more employees. There are no tenure, hours, or other eligibility requirements for employees.2
3. California’s Paid Sick Leave (PSL), established under the Healthy Workplaces, Healthy Families Act of 2014, entitles employees to take up to 40 hours or five days of leave for the diagnosis, care, or treatment of (or preventative care for) an employee or an employee’s family member. PSL applies to all employers, regardless of the number of employees. Employees are eligible to earn PSL after working for at least 30 days.3
4. The California Fair Employment and Housing Act (FEHA) entitles employees to five days of Bereavement Leave upon the death of a family member. A “family member” under this statute means a spouse, child, parent, sibling, grandparent, grandchild, domestic partner or parent-in-law. This applies to all employers with five or more employees. Employees are eligible to take bereavement leave after working for the same employer for at least 30 days.4
