Our California employee has requested time off from work after their spouse recently experienced a miscarriage. What types of leave might he be eligible for?
In California, an eligible employee whose spouse has a miscarriage can take up to five days of unpaid reproductive loss leave.
California requires private employers with five or more employees and all public employers to provide reproductive loss leave to eligible employees who experience qualifying events such as a miscarriage. This entitlement is separate from bereavement leave.
What Qualifies
Employees are eligible for reproductive loss leave if they have worked for the employer for at least 30 days before the leave begins and they experience a reproductive loss event as follows:
• Failed adoption: An adoption agreement is dissolved or breached or an adoption that is not finalized because it is contested.
• Failed surrogacy: A surrogacy agreement is dissolved or breached or an embryo transfer to the surrogate fails.
• Miscarriage: A miscarriage is experienced by the employee, the employee’s current spouse or domestic partner, or another individual who would have been a parent as a result of the pregnancy.
• Stillbirth: A stillbirth occurs resulting from the pregnancy of the employee, the employee’s current spouse or domestic partner, or another individual who would have been a parent as a result of the pregnancy.
• Unsuccessful assisted reproduction: An unsuccessful round of intrauterine insemination or assisted reproductive technology procedure (that is, artificial insemination or an embryo transfer, including gamete and embryo donation) for the employee, the employee’s current spouse or domestic partner, or another individual who would have been a parent of a child born as a result of the pregnancy. This does not include conception through sexual intercourse.
Timing of Leave
Eligible employees may take up to five days of reproductive loss leave per event and the days do not need to be consecutive. If an employee experiences more than one reproductive loss event in a 12-month period, they may receive an additional five days per event. Employers may cap total reproductive loss leave at 20 days in a 12-month period.
Reproductive loss leave generally must be taken within three months of the event. However, if the employee is on or chooses to take another leave for which they are eligible, they may complete their reproductive loss leave within three months after that other leave ends.
Reproductive loss leave is unpaid, but employees can use their existing available vacation, personal leave, sick leave or other compensatory time off. Employers may not request documentation to certify reproductive loss leave.
Also Remember
Employers must keep reproductive loss leave requests confidential, disclosing information only to necessary internal personnel or counsel, or as required by law.
Additionally, employers cannot terminate, discriminate or retaliate against employees for exercising their rights under the law.
Employers with an HRCalifornia membership have access to the Reproductive Loss Leave Checklist, which can be used to create and implement a reproductive loss leave policy that complies with California’s reproductive loss leave requirements for employers with five or more employees.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
