Reproductive Loss Leave: Understanding California’s New Employee Benefit

In a significant move aimed at supporting workers experiencing pregnancy loss, California recently introduced a new category of leave known as Reproductive Loss Leave. Signed into law by Governor Gavin Newsom on October 13, 2023, Senate Bill 848 creates this new benefit for California employees. The law, which took effect in January 2024, provides protected time off for workers who experience miscarriage, stillbirth, unsuccessful assisted reproduction, failed adoption, or surrogacy arrangements.

This groundbreaking legislation strengthens California’s robust employee rights framework and signals an important recognition of the emotional and physical toll that reproductive loss can take on workers. As with any leave law, it contains important provisions that employers and employees alike need to know. Read on as we explore the details of Senate Bill 848, what it means for employees and employers in California, and the obligations it places on employers to support their staff during these difficult times. If you are a Bay Area employer or employee with questions about California leave laws, contact attorney Richard Koss to speak with a skilled and knowledgeable San Francisco employment law attorney.

Key Provisions of Senate Bill 848

Senate Bill 848, introduced by Senator Aisha Wahab, adds Section 12945.7 to the California Government Code, expanding family leave rights to cover reproductive loss. Under this law, employees who experience pregnancy loss or other forms of reproductive loss are entitled to up to five days of leave in the following circumstances:

• Miscarriage
• Stillbirth
• Unsuccessful assisted reproduction (e.g., failed in vitro fertilization)
• Failed surrogacy arrangements
• Unsuccessful adoption where the child does not remain in the employee’s custody after adoption.

The leave is intended to give employees time to process their emotional and physical recovery in the wake of these personal losses. Importantly, the law applies to both employees who directly experience the loss and their partners.

Eligibility for Reproductive Loss Leave

Similar to other family leave laws in California, SB 848 provides this benefit to employees working for employers with five or more employees. Government employers are also covered. To qualify for Reproductive Loss Leave, employees must meet the following requirements:

• Be employed for at least 30 days prior to the leave request.
• Work for an employer that is covered by the law, meaning an employer with at least five employees or a government agency.

Notably, this law makes no distinction between full-time and part-time employees. Therefore, both are eligible for the benefit as long as they meet the 30-day employment requirement.

Paid or Unpaid Leave?

SB 848 does not mandate that Reproductive Loss Leave be paid. However, employees may have the option to use accrued paid leave, such as sick leave, vacation time, or compensatory paid time off (also called PTO or comp time), to cover their absence. Employers should carefully review their internal policies regarding paid time off and how they intersect with this new category of leave.

Notice and Certification Requirements

The bill requires employees to provide reasonable notice to their employer when requesting Reproductive Loss Leave. The law does not explicitly define “reasonable notice,” but generally, this should be as soon as practicable. Employers may also require employees to provide documentation or certification verifying the need for leave. Acceptable documentation may include medical certification, a note from a healthcare provider, or other relevant records.

Job Protection and Return to Work

As with other types of protected leave under California law, employees taking Reproductive Loss Leave are entitled to job protection. Employers must ensure that employees can return to the same or a comparable position after their leave has ended. Terminating or retaliating against employees for taking Reproductive Loss Leave would be a violation of the law, exposing employers to potential legal liability.

Impact on Employers: What You Need to Know

For employers, compliance with SB 848 requires updating existing leave policies and ensuring that managers and human resources personnel understand the requirements of this new law. Here are several key steps employers should take to prepare:

1. Policy Updates: Review and revise employee handbooks, leave policies, and other internal documents to include information on Reproductive Loss Leave. Clearly communicate whether employees can use paid time off during this leave.

2. Manager Training: Provide training for managers and HR professionals on how to handle requests for Reproductive Loss Leave, including how to handle documentation and maintain confidentiality.

3. Record-Keeping: Ensure proper documentation of all leave requests, employee notices, and any certification provided by employees to avoid legal disputes.

4. Anti-Retaliation Measures: Reinforce company policies prohibiting retaliation against employees who take Reproductive Loss Leave. Educate management on the potential legal consequences of adverse actions against employees on leave.

Intersection with Other California Leave Laws

California is known for its comprehensive leave laws, such as the California Family Rights Act (CFRA), Pregnancy Disability Leave (PDL), and Paid Family Leave (PFL). Reproductive Loss Leave adds another layer of protection for workers but does not replace or eliminate existing entitlements. Employers must ensure that they understand how these laws interact and that employees are fully informed about their rights.

For example, an employee may be eligible for Reproductive Loss Leave under SB 848 in addition to other forms of leave under CFRA or PDL. Employers should encourage open communication with employees to determine the best approach for managing their leave needs.

The Road Ahead: What This New Law Means for Employers and Employees

Senate Bill 848 represents a significant step toward recognizing and addressing the personal challenges faced by employees experiencing reproductive loss. By offering protected time off, California is not only promoting employee well-being but also fostering a more compassionate and supportive workplace culture.

If they haven’t yet, employers should take proactive measures to ensure compliance with the law while also offering empathy and understanding to affected employees. As more employees become aware of this law’s implementation, businesses must be prepared to integrate this new leave into their policies, creating a workplace that values the emotional and physical health of its workforce.

For employees, SB 848 provides vital support during difficult times. If you or someone you know is facing a reproductive loss, understanding your rights under this new law is essential to ensuring you receive the time off and care you need.

Contact Attorney Richard Koss for Help With Employment Law in San Francisco

If you have an issue with Reproductive Loss Leave or other leave laws at your workplace in the San Francisco Bay Area, contact employment law attorney Richard Koss for help. Call 650-722-7046 on the San Francisco Peninsula or 925-757-1700 in the East Bay. Attorney Koss is dedicated to helping both employers and employees navigate California’s complex employment laws.