California’s New Leave of Absence for Reproductive Loss

California has created another new leave of absence for employers to manage. Starting January 1, 2024, private employers with five or more employees, and all public employers, must provide eligible employees with reproductive loss leave for qualifying events. This leave is an entirely new leave entitlement — distinct from last year’s bereavement leave, family and medical leave (e.g., California Family Rights Act (CFRA)), pregnancy disability leave (PDL) and other leaves of absence.

Employees are eligible for reproductive loss leave if they’ve been working for the employer for at least 30 days prior to the leave’s start and suffer a qualifying event.

Eligible employees may take leave for up to five days when they suffer a reproductive loss event, which is the day, or the final day for a multiple day event, of one of the following:

• Failed adoption: 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.
• Failed surrogacy: The dissolution or breach of a surrogacy agreement, or a failed embryo transfer to the surrogate.
• Miscarriage: May be a miscarriage by a person, by the person’s current spouse or domestic partner, or by another individual who would have been a parent as a result of the pregnancy.
• Stillbirth: May be a stillbirth resulting from a person’s pregnancy, the pregnancy of a person’s current spouse or domestic partner, or another individual that would have been a parent as a result of the pregnancy.
• Unsuccessful assisted reproduction: An unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure (i.e., artificial insemination or an embryo transfer, including gamete and embryo donation). Assisted reproduction does not include reproduction through sexual intercourse. This event 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 as a result of the pregnancy.

The five days of leave don’t need to be consecutive. Plus, if an employee experiences more than one reproductive loss event within a 12-month period, an employee can receive another five days of leave. Employers may cap reproductive loss leave at 20 days within a 12-month period.

Generally, reproductive loss leave must be taken within three months of the reproductive loss event; however, if prior to or immediately following a reproductive loss event, an employee is on or chooses to go on leave under another leave entitlement (e.g., PDL, CFRA, etc.), then the employee may complete their reproductive loss leave within three months of the end of the other leave.

Reproductive loss leave is unpaid, but employees can use existing vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

Unlike California’s bereavement leave, employers may not request documentation to certify reproductive loss leave.

Employers must maintain the confidentiality of any employee requesting reproductive loss leave and cannot terminate, discriminate or retaliate against employees for exercising their rights under the law.

James W. Ward, J.D., Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber

CalChamber employment law experts will cover more new 2024 employment laws in more detail in the October issue of our HRCalifornia Extra newsletter (subscribe to HRCalifornia Extra) and in our annual new laws whitepaper (coming in November). Not a member? Learn more about how HRCalifornia can help you.