Effective Jan. 1, 2024, under the recently signed Senate Bill 848 (S.B. 848), covered California employers must provide eligible employees with a job-protected leave of absence following a reproductive loss. This blog post provides an overview of this new law.
What Employers Need to Know
1. ‘Employer’ and ‘employee’ are broadly defined.
California private employers with five or more employees, as well as all California public employers, must provide reproductive loss leave to eligible employees. “Employee” is defined broadly to include any person employed by a covered employer for at least 30 days before the leave begins.
2. Reproductive loss events and who may take reproductive loss leave are also broadly defined.
Eligible employees may take leave for up to five days if they suffer a reproductive loss event, which means a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction (such as artificial insemination or an embryo transfer). As drafted, S.B. 848 does not specifically include (or exclude) abortion as a reproductive loss event covered under the statute.
In the event of a failed adoption or failed surrogacy, leave is available to a person who would have been a parent had the event been successful. For miscarriages, stillbirths, and unsuccessful assisted reproduction, leave is available to the person who experiences the loss and their spouse or domestic partner, or by another individual if that individual would have been a parent as a result of the pregnancy.
The five days do not need to be consecutive, but generally must be taken within three months of the reproductive loss event. However, if the employee is on or chooses to take alternate statutorily provided/protected leave, such as pregnancy disability leave (PDL) or leave under the California Family Rights Act (CFRA), they may take reproductive loss leave within three months of the conclusion of that leave. In the case of multiple reproductive loss events in a 12-month period, the total amount of leave for this purpose can be limited to 20 days within that period.
3. S.B. 848 affords additional protections to employees who experience a reproductive loss event.
Unlike other similar protected leave entitlements, S.B. 848 does not contain any notice requirements, nor does it state whether employers can request documentation to substantiate an employee’s leave request for this purpose. Similar to other leaves, however, employers must maintain the confidentiality of requests for reproductive loss leave, and are prohibited from (1) refusing to grant a leave request, (2) engaging in any discrimination or retaliation against employees for exercising their rights under S.B. 848 or giving information related to their own or another person’s reproductive loss leave, and (3) interfering with, restraining, or denying the exercise or attempted exercise of any right under S.B. 848.
4. Whether reproductive loss leave is paid depends upon the employer’s policies.
While S.B. 848 does not require that reproductive loss leave be paid, employees may use other paid time off/paid leave, including paid sick leave and vacation. As a reminder, California recently expanded coverage under the state sick leave law, increasing the amount of sick leave California employees will be able to use annually to 5 days/40 hours (with an overall accrual cap of 10 days/80 hours unless the 5 days/40 hours is provided in full at the beginning of the year), starting Jan. 1, 2024.
5. This leave is ‘separate and distinct’ from other employee rights.
S.B. 848 is explicitly characterized as a “separate and distinct right” under the Fair Employment and Housing Act and therefore was presumably intended not to run concurrently with other leave entitlements such as PDL and CFRA.
How Employers Can Prepare
In preparation for the Jan. 1 effective date, employers should review and update their current handbooks, policies, and internal processes/protocols/systems for compliance with S.B. 848 and ensure HR professionals and managers are aware of this new leave entitlement (including what it does and does not allow).