Issue 141 - November 2023
California Law Expands Leave Rights for Reproductive Losses
Originally published on October 27, 2023. Reprinted with permission from Atkinson, Andelson, Loya, Ruud & Romo.
Signed by Governor Newsom on October 11, 2023, Senate Bill (“S.B.”) 848 adds section 12945.6 to the Government Code effective January 1, 2024. S.B. 848 allows qualifying employees to take a leave of absence following a “reproductive loss event” and makes it an unlawful employment practice for a qualified employer to refuse to grant a qualified employee’s request to take leave following a reproductive loss event or to retaliate against an employee for requesting such leave. Under existing law, California employers were required to provide employees bereavement leave upon the death of a family member. (Gov. Code § 12945.7.) Under existing law, it was unclear if a reproductive loss was covered by bereavement leave. S.B. 848 addresses this question and provides a separate form of leave for a reproductive loss event.
Who is Covered by the New Law?
Under S.B. 848, an “employer” includes anyone who employs five or more persons and all California public employers, including public school districts and community college districts. An “employee” is defined as “a person employed by the employer for at least 30 days prior to the commencement of the leave.” Any persons who would have been a parent if the reproductive event had been successful are entitled to this new type of leave. Notably, unlike California’s bereavement leave law (Government Code § 12945.7), there is no exemption for employees covered by collective bargaining agreements that meet certain requirements.
What Qualifies as a “Reproductive Loss Event”?
S.B. 848 broadly defines what qualifies as a “reproductive loss event.” The definition includes “miscarriage, unsuccessful assisted reproduction, failed adoption, failed surrogacy, or stillbirth.”
An “unsuccessful assisted reproduction” includes “method[s] of achieving a pregnancy through an artificial insemination or an embryo transfer,” but does not include an attempt to become pregnant through sexual intercourse.
A “failed adoption” includes “the dissolution or breach of an adoption agreement with the birth mother or legal guardian, or an adoption that is not finalized because it is contested by another party.”
A “failed surrogacy” includes both the “dissolution or breach of a surrogacy agreement, or a failed embryo transfer to the surrogate.”
A “miscarriage” includes not only a miscarriage suffered by the employee or the employee’s spouse or registered domestic partner, but also a miscarriage suffered “by another individual if the person would have been a parent of a child born as a result of the pregnancy” – it would therefore appear, for example, that a miscarriage suffered by a surrogate after an initially successful embryo transfer would qualify as a reproductive loss event for the intended parent(s).
It is unclear if an employer can ask an employee for medical or other documentation to support the request for reproductive loss leave. S.B. 848 does not contain a provision explicitly permitting an employer to request supporting documentation.
How Much Leave is an Employee Entitled to?
When a qualified employee suffers a reproductive loss event, the employee is entitled to up to five days of leave following the day of the reproductive loss event, or the final day of a reproductive loss event for a multiple-day event. The leave need not be taken immediately following the reproductive loss event, but must be taken within three months from the event. Under S.B. 848, if an employee experiences more than one reproductive loss event within a 12-month period, the employee is only entitled to a total of 20 days of leave within the 12-month period. An employee’s request for reproductive loss leave is confidential.
Interaction with Existing Leave Policies:
If the employee has a policy covering reproductive loss, then the leave taken pursuant to S.B. 848 is taken pursuant to the existing applicable leave policy of the employer. If an employer does not have a policy covering reproductive loss, then the employee may take available and accrued sick leave or other compensatory time off (e.g. vacation, bereavement leave, personal necessity leave). The paid leave may run concurrently with leave taken pursuant to S.B. 848. If an employee does not have any available paid leave, then the employee may take unpaid leave pursuant to S.B. 848.
This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.< Back to Full Issue Print Article