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California enacts reproductive loss leave law

Employers must comply by January 1, 2024

Posted October 27, 2023

Effective January 1, 2024, California employers with five or more employees will need to provide leave for another reason — reproductive loss. California is the second state to enact a law for this reason, following Illinois.

Employees are eligible to take the leave if they have worked for the employer for at least 30 days before leave begins. Employees may take up to five days, which can be intermittent, of reproductive loss leave.

What qualifies for leave?

Employees may take the leave for “a reproductive loss event,” which means the day, or for a multiple-day event, the final day of:

  • A failed adoption (the dissolution or breach of an adoption agreement with the birth mother or legal guardian, or an adoption that isn’t finalized because another party contested it. This event applies to a person who would have been a parent of the adoptee if the adoption had been completed).
  • A failed surrogacy (the dissolution or breach of a surrogacy agreement, or a failed embryo transfer to the surrogate. This event applies to a person who would have been a parent of a child born as a result of the surrogacy).
  • A 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 as a result of the pregnancy).
  • A 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 as a result of the pregnancy that ended in stillbirth).
  • An unsuccessful assisted reproduction (an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure. 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).

What are the leave terms?

Signed into law on October 10, the law requires that employees take the leave within three months of the event, with some exceptions, and pursuant to any existing company leave policy.

If an employee experiences more than one reproductive loss event within a 12-month period, employers don’t have to grant a total amount of reproductive loss leave time in excess of 20 days within a 12-month period.

If employers don’t have an existing policy, the reproductive loss leave may be unpaid. Employees may, however, choose to use certain other leave balances otherwise available, including accrued and available paid sick leave.

Employers may not retaliate against employees for taking the leave, giving information about the leave, or making a formal statement regarding the leave.

Employers must maintain employee confidentiality relating to reproductive loss leave.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.

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