California Enacts Broad Entitlement to Reproductive Loss Leave for California Employees

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Rachael Luken Carp

November 7, 2023

The state of California recently added section 12945.6 to its Government Code.[1]  This Section, which will take effect January 1, 2024, recognizes the grief and loss that follow a reproductive loss event, broadly defined as “the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction,”[2] and makes it unlawful for an employer to refuse to grant an employee’s request for up to five days of leave following such an event.  Employers also are prohibited from retaliating against an individual for exercising their right to take leave or from giving information or testimony as to their own or another person’s reproductive loss leave.  The entitlement to reproductive loss leave is in addition to and distinct from the ability of California employees to take up to five days of bereavement leave upon the death of a family member.

Notably, both parents/partners/spouses are entitled to take reproductive loss leave.  For example, in the event of a stillbirth, miscarriage, or failed insemination, the statute provides that the following individuals are entitled to leave: (1) the person experiencing the event; (2) that person’s spouse/domestic partner; and (3) the person who would have been the parent of a child born as a result of the pregnancy.  In the event of a failed adoption or surrogacy, the person who would have been the parent if the adoption or surrogacy was successful is entitled to take the leave.

The statute has broad reach within the state, covering all employers (1) who employ five or more people; as well as (2) the state or any political or civil subdivision of the state.  However, as with any statute, there are caveats.  Specifically:

• Only employees who have been employed by the employer for at least 30 days prior to the commencement of the leave are statutorily protected.
• The leave must be requested and completed within three months of the loss event, but the days can be nonconsecutive.
• The statute caps the number of days of leave at 20 within a 12-month period for employees who experience multiple reproductive loss events during that period.
• Reproductive loss leave must be taken pursuant to the employer’s existing applicable leave policy, if any.
• In the absence of an existing leave policy, the reproductive loss leave may be unpaid. However, employees may use other available paid leave, such as sick leave, vacation time, and the like.

The takeaway: between now and January 1, 2024, California employers should update their employee handbooks to include a section concerning reproductive loss leave, including whether the leave will be paid or unpaid.  Employers also should educate their employees concerning the entitlement to leave and implement a no-tolerance policy for retaliation.

*Special thanks to Ava Petrellese, our Paralegal, for her contributions to this article.

The author of this article, Rachael Luken Carp, is a member of the Bars of New Jersey, New York, and Pennsylvania.  This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in California, New Jersey, New York, Pennsylvania, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist.  Always consult an attorney with specific legal issues.

[1] Cal. Gov. Code. §12945.6.

[2] Id. at (a)(7).