Starting January 1, 2024, California will allow employees reproductive loss leave, granting eligible employees up to five days of unpaid leave following a reproductive loss event. This groundbreaking law aims to address the often-overlooked aspect of reproductive loss, which can have profound emotional and psychological effects on individuals and couples.
The Scope of Reproductive Loss Leave
Senate Bill 848, now enshrined in California law, represents a pivotal shift in employee rights by expanding the provisions of bereavement leave. This new leave entitlement encompasses various reproductive loss events, including failed adoption, failed surrogacy, miscarriage, stillbirth, and unsuccessful assisted reproduction. Such events can be profoundly distressing, affecting individuals and couples emotionally and psychologically.
Reproductive loss leave allows eligible employees to take up to five days off work following a reproductive loss event. It’s essential to note that the five days of leave do not need to be consecutive, offering flexibility to employees who may require intermittent time off to cope with their loss.
Eligibility and Employer Coverage
To qualify for reproductive loss leave, employees must have worked for their employer for at least 30 days prior to the commencement of the leave. Covered employers include those with five or more employees, as well as all public employers, including school districts and community college districts. Unlike California’s bereavement leave law, which had certain exemptions for collective bargaining agreements, SB 848 extends coverage broadly without such exceptions.
Understanding Reproductive Loss Events
The legislation defines reproductive loss events in a comprehensive manner, acknowledging the diverse circumstances that can lead to reproductive loss:
- Failed Adoption: This includes the dissolution or breach of an adoption agreement with the birth mother or legal guardian, or an adoption that is not finalized due to contested proceedings.
- Failed Surrogacy: Encompasses both the dissolution or breach of a surrogacy agreement and the failure of embryo transfer to the surrogate.
- Miscarriage: Recognizes not only miscarriages experienced by the employee or their spouse/domestic partner but also miscarriages suffered by individuals who would have been parents as a result of the pregnancy. This inclusive definition acknowledges the complexity of reproductive loss events.
- Stillbirth: Covers stillbirths resulting from various pregnancies, including those of the employee, their spouse/domestic partner, or other individuals who would have been parents due to the pregnancy.
- Unsuccessful Assisted Reproduction: This category includes unsuccessful attempts at achieving pregnancy through artificial insemination or embryo transfer (gamete and embryo donation). It is essential to note that it excludes reproduction through sexual intercourse.
Leave Entitlement and Usage
Eligible employees can take up to five days of unpaid reproductive loss leave following the day of the reproductive loss event. This leave can be taken within three months of the event, providing individuals with the flexibility they need to cope with their loss effectively. Additionally, if an employee experiences multiple reproductive loss events within a 12-month period, they can receive an additional five days of leave. However, the law caps reproductive loss leave at 20 days within a 12-month period, ensuring a reasonable balance between employee needs and operational considerations.
Interaction with Existing Leave Policies
California’s new reproductive loss leave law acknowledges the diversity of employer policies regarding leave. If an employer already has a policy covering reproductive loss, the leave taken under SB 848 will align with the existing applicable leave policy. However, if an employer does not have a specific policy in place for reproductive loss, eligible employees may use available and accrued paid leave, such as sick leave, vacation, bereavement leave, or personal necessity leave. It’s important to note that the paid leave may run concurrently with the leave taken under SB 848. For employees without available paid leave, the option of unpaid leave under SB 848 remains available.
Confidentiality and Non-Retaliation
Employers must maintain the confidentiality of employees requesting reproductive loss leave and are prohibited from terminating, discriminating against, or retaliating against employees exercising their rights under the law. This protection is crucial in ensuring that employees feel safe and supported when requesting reproductive loss leave.
Conclusion
California’s enactment of Senate Bill 848 represents a significant step forward in recognizing the emotional and psychological impact of reproductive loss events on individuals and couples. By providing up to five days of unpaid leave, this legislation aims to offer crucial support during difficult times. Employers should update their policies, train their staff, and ensure compliance with this new leave entitlement to provide the necessary support to their employees when they need it most. Starting January 1, 2024, private employers with five or more employees, along with all public employers, will be required to provide eligible employees with reproductive loss leave, acknowledging the importance of compassion and understanding in the workplace.
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