As we approach 2024, California has a new right for employees to take leave to grieve loss that is on the horizon and primed to go into effect as we enter into the new year.
Effective January 1, 2024, the state will require employers with five or more employees to provide eligible employees up to five days of leave following a reproductive loss, including failed adoption, surrogacy, or assisted reproduction. This comes one year exactly on the heels of a California law requiring employers to provide leave for employees to mourn the death of a family member.
If you have employees in California, you should prepare to comply with the new requirement and remain alert to the evolving bereavement-leave landscape.
Affected Employers and Eligible Employees
Governor Gavin Newsom signed Senate Bill (SB) 848 providing reproductive loss leave on October 11, 2023. The law will be codified at Section 12945.6 of the California Government Code, under the California Fair Employment and Housing Act (FEHA). S.B. 848 applies to employers that “employ[] five or more persons to perform services for a wage or salary” and all California public employers. On its face, it doesn’t include a geographical qualification for private employers or employees, so if you have employees who work in California, the law likely applies.
To be eligible for reproductive loss leave, an employee must have worked at least 30 days for the employer before the start of the leave. Employees must complete their leave within three months after experiencing a reproductive loss event, unless they are already on or choose to go on any other leave provided under state or federal law before or immediately after the event. In that case, the window extends until three months after the end of the other leave.
Reproductive Loss Events
S.B. 848 specifically lists and defines qualifying reproductive loss events, which are relatively broad in both scope and application to affected individuals:
- Failed adoption, which applies to a person who would have been a parent of the adoptee;
- Failed surrogacy, including failed embryo transfer to the surrogate, which applies to a person who would have been a parent of a child born;
- Miscarriage by a person, by the person’s current spouse or domestic partner, or by another individual if the person would have been a parent of a child born;
- Stillbirth resulting from a person’s pregnancy, the pregnancy of a person’s current spouse or domestic partner, or another individual, if the person would have been a parent of a child born; and
- Unsuccessful assisted reproduction through artificial insemination or an embryo transfer, including gamete and embryo donation, which applies to a person, the person’s current spouse or domestic partner, or another individual, if the person would have been a parent of a child born.
If a reproductive loss event spans multiple days, it’s considered to have occurred on the final day on which some part of the event took place.
Requirements
As of January 1, 2024, it will be illegal for a qualifying employer to refuse to grant an eligible employee’s request for up to five days of reproductive loss leave or to interfere with or restrain an employee’s attempt to exercise the rights provided under the new Section 12945.6.
Employers must allow the five days to be taken nonconsecutively, and employees may request leave for multiple reproductive loss events in a single year. However, employers aren’t required to grant more than 20 days of leave within a 12-month period.
Notably, S.B. 848 doesn’t require employers to affirmatively implement a reproductive loss leave policy. And it doesn’t require the leave to be paid. Rather, if an employer has an existing applicable leave policy, that policy governs the reproductive loss leave. If there is no such policy, the leave may be unpaid—although the employee may choose to use other compensated time off, such as vacation, personal, or sick leave.
Employers are prohibited from retaliating against an employee for exercising the employee’s right to leave or giving information or testimony about the employee’s or another’s leave. Employers must maintain the confidentiality of an employee requesting leave.
Practical Pointers
S.B. 848 specifically states that the right to reproductive loss leave is separate and distinct from other rights under the FEHA. Accordingly, while experience with and information about similar rights (such as the recent right to bereavement leave) likely are instructive, it will be important to remain alert to guidance, opinions, and other information issued regarding this new right to leave.
Julie Hamilton is an associate with Holland & Hart LLP’s employment and labor practice group. Julie practices out of the firm’s Boise, Idaho, office and may be reached at jahamilton@hollandhart.com.