The 12 Days of California Labor and Employment Series – Day 2 "Reproductive Leave for California"

In the spirit of the season, we are using our annual "12 Days of California Labor and Employment" blog series to address new California laws and their impact on California employers. On the second day of the holidays, my labor and employment attorney gave to me two turtle doves and SB 848.

As of January 1, 2024, California will become only the second state, after Illinois, to provide reproductive loss leave under SB 848. This new leave requires employers with five or more employees to provide five days of unpaid leave when an employee sustains a reproductive loss.

Reproductive Loss Qualifications

A reproductive loss is defined as a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction. To qualify for a reproductive leave, an employee must be employed by the employer for at least 30 days before the commencement of the leave.

A qualified employee is allowed five days of leave, but the leave does not need to be taken consecutively. However, employees must use their allowed leave time within three months of the reproductive loss.

SB 848 also provides for situations where an employee may have multiple reproductive losses in a year. If an employee experiences more than one reproductive loss event within 12 months, the maximum leave time would be 20 days within 12 months. 

Reproductive leave under SB 848 is unpaid. However, an employee may use personal time, paid sick time, vacation, or other paid time off provided by the employer and available to the employee.

Based on the statutory language, it does not appear that an employer can require an employee to use other available paid leave time. That will be the employee's choice. Unlike other leaves, such as bereavement, an employee is not required to provide medical documentation to support the request for reproductive leave. 

Finally, employers must maintain the confidentiality of any employee requesting leave for a reproductive loss.

Next Steps for Employers

1. California now has another leave that must be added to the employer handbook.
2. In addition, any personnel involved in handling leaves should be informed and trained regarding reproductive leave under SB 848 so all requested leaves are properly managed and documented.
3. It is also recommended that an employer provide any qualified employee requesting leave the details of any paid leave the employee has available and ask the employee whether they wish to utilize any available paid leave.