California Reproductive Loss Leave - January 1, 2024

We have another year that California is adding another job protected leave! Beginning January 1, 2024, employers with 5 or more total employees in the country will need to offer their employees a minimum of 5 days of unpaid time off in the event of a “reproductive loss” event. A reproductive loss event is defined as any of the following:?

• Failed adoption – dissolution or breach of an adoption agreement, or adoption not finalized?
• Failed surrogacy - dissolution or breach of a surrogacy agreement or a failed embryo transfer to the surrogate?
• Miscarriage?
• Stillbirth?
• Unsuccessful assisted reproduction (such as IUI, IVF or ART procedure)?

Any person who would have been a parent to the child as a result of the event is eligible. While employers have the option to pay employees for reproductive loss leave, this new requirement is focused on job protection, and does not mandate pay. Job protection means protecting against any adverse action, such as discipline or retaliation, for taking time off under this leave. This new law also protects employee’s confidentiality regarding any matter associated with this leave. Eligibility and requirements for leave: ?

1. Employees must be employed for at least 30 days prior to the start of leave. ?
2. The 5 days need not be consecutive and can be used within 3 months of the reproductive loss event.If an employee is currently out on another leave of absence (such as CFRA, PDL, FMLA) or chooses to go on leave, the 3-month period they have to use reproductive loss leave begins after the employee returns from the other leave of absence.
3. The employee is allowed to use sick, vacation and/or paid time off to cover any unpaid time away from work.
4. The new law is silent regarding documentation. There is no guidance on whether an employee may or may not request documentation from an employee who is requesting reproductive loss leave.
5. If you have a current policy which provides paid time off for any of the above-mentioned situations (like miscarriage through a bereavement policy), the new law requires you pay employees according to that policy for all reproductive loss leave events, since the current policy covers payment for part of this leave.?

Be sure to update your handbooks to include this new leave and align your bereavement leave policy with reproductive loss leave to ensure there is no cross-over. We’ve often seen employers cover miscarriages under bereavement leave policies, which may potentially conflict the amount of time an employee may take off for such an event. It may also complicate payment of leave if a reproductive loss event is covered under an existing policy. If you need assistance updating the policy to be compliant, we are here to help!?