California to Require Leave for Reproductive Loss

Author: Michael Cardman, HR & Compliance Center Senior Legal Editor

October 12, 2023

Starting in 2024, a new law will require California employers to provide employees up to five days of leave following a reproductive loss.

A reproductive loss includes a miscarriage, stillbirth, failed adoption, failed surrogacy or unsuccessful assisted reproduction (i.e., artificial insemination or an embryo transfer) by either an employee or by their spouse or domestic partner.

The new reproductive-loss leave applies to all employers with five or more employees and to all employees who have worked for their employer for at least 30 days before the leave begins.

Employees who experience multiple reproductive losses are entitled to up to 20 days of leave in any 12-month period. Employees may take leave for reproductive loss on nonconsecutive days and must complete their leave within three months of either the reproductive loss or of the end of other leave taken under the California Family Rights Act, the California pregnancy disability leave law or any other leave entitlement under state or federal law.

Employees must take reproductive-loss leave according to their employers' existing leave policies. If their employer does not have a leave policy, reproductive-loss leave may be unpaid - but an employee may use any other available vacation, personal leave, accrued and available sick leave or compensatory time off.

Sen. Susan Rubio said she authored the new law because reproductive loss is "far too common" - about 10-20% of known pregnancies end in miscarriage, but the actual number is likely higher because many miscarriages happen before people realize they're pregnant, according to the Mayo Clinic - but California's existing family leave laws "don't fully apply" to parents experiencing reproductive loss.