California's Senate Bill SB 848 was signed into law on October 10, 2023, and has been effective as of January 1, 2024. California employers of five or more employees are now required to provide their employees reproductive loss leave after each reproductive loss event. Due to the sensitive nature of reproductive loss, the statute warns that employers must maintain the confidentiality of any employee who requests such leave and any information that the employee discloses except on an as-needed basis to internal personnel such as Human Resources employees, legal counsel, or as otherwise required by law. Failure to grant covered reproductive loss leave is an unlawful practice.
Employers should work with experienced employment counsel to ensure that their policies and practices include this new leave. They also need to train Human Resources and other personnel as quickly as possible to comply. Otherwise, employers may face claims arising from, among other things, failing to grant protected leave, improperly disclosing confidential medical information to persons who did not need access to it, or discrimination, harassment, or retaliation against persons seeking or taking such leave.
Under the statute, a "reproductive loss event" is broadly defined, and applies to failed adoptions, failed surrogacies, miscarriages, stillbirths, or unsuccessful assisted reproductions. Reproductive loss leave is available:
- to would-be adoptive parents if an adoption falls through due to, among other things, a dissolution, breach of, or failure to finalize an adoption agreement;
- to would-be parents of a surrogate child if a surrogacy agreement is dissolved, or breached, or the embryo transfer fails;
- in the event of a miscarriage or stillbirth, to the pregnant person, their spouse or domestic partner, or "another individual" if that person would have been a parent as a result of the pregnancy; and
- in the event of unsuccessful intrauterine insemination or assisted reproductive technology procedures, to the person receiving treatment, their spouse or domestic partner, or "another individual" if that person would have been a parent had the treatment been successful.
Specifically, under the new law, employees are now entitled to:
- take five days of reproductive loss leave after each reproductive loss, which may be taken consecutively or non-consecutively;
- take up to 20 days of reproductive loss leave within a 12-month period; and
- use their accrued and unused vacation, personal leave, sick leave, or paid time off during their reproductive loss leave, which is otherwise unpaid, unless there is an existing policy to the contrary.
To be entitled to use reproductive loss leave, employees must meet the following qualifications:
- The employee must have been employed for at least 30 days before starting leave
- The employee must complete their reproductive loss leave within three months of the reproductive loss, or within three months after completing another type of leave if the employee is on another type of leave prior to or shortly after the reproductive loss
Compliance with the new reproductive loss leave law may in some circumstances be complex, and employers must comply with these statutory obligations when an eligible employee requests such leave. Further, because California has recently enacted multiple laws granting or expanding leave rights in a variety of circumstances where the qualifications of employees, application of the law, or duties of the employer may differ, employers must take care to understand the differences between these new laws. It is imperative that employers consult with their employment counsel or risk liability. Here, an ounce of prevention is worth a pound of harm.
Originally published by Today's General Counsel.
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