A Legacy of Experience

What employers need to know about reproductive loss leave

On Behalf of | May 28, 2024 | Employment Law |

California offers employees more rights and benefits than many other states, and new ones are always being added to the law. Effective at the beginning of this year, private employers with five or more employees, and all public employers, are required to provide reproductive loss leave to employees who qualify.

When an attempt to have a child fails, it can be devastating to both parents. Let’s take a look at how “reproductive loss” is defined under the law and what your responsibilities are as an employer.

When does someone qualify for this leave?

Under the law, reproductive loss includes:

  • Stillbirth of a child
  • Miscarriage
  • Failed adoption
  • Failed surrogacy
  • Unsuccessful reproductive technology procedures (like in vitro fertilization or IVF)

Employers are required to provide five days of leave to any prospective parent (regardless of gender or marital status) who has suffered a reproductive loss. An employee needs to have been employed for 30 days to be eligible for the leave. The leave must be taken no more than three months after the loss was suffered. However, if prior to or immediately following a reproductive loss event, an employee is eligible for and goes on leave under another leave entitlement (e.g., PDL, CFRA, etc.), the employee may complete their reproductive loss leave within three months of the end of the other leave.

The five days of leave do not need to be taken consecutively. Also, 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.

Although employers don’t have to pay employees for the days they take off for this leave, employees are entitled to use “certain other leave balances otherwise available to the employee, including accrued and available paid sick leave.”

Compassion and privacy are crucial

The law also prohibits employers from discriminating or retaliating against employees who request and/or take this leave. Some employers may not instinctively consider a failed IVF attempt or even an attempt to adopt or have a baby via a surrogate that suddenly falls through a “loss.” However, it’s important to remember that the law has defined such events as a reproductive loss and employers must comply.

This kind of loss can be very personal and one that an employee doesn’t want to share with their co-workers – especially if other employees were not aware of the efforts to welcome a new child into the home.  Employers need to protect their employees’ right to privacy and not share the reason for the leave with anyone who doesn’t need to know it (like human resources personnel, for example).

If you have questions or concerns about the law, it’s wise to get legal guidance. This can prevent non-compliance issues.