California’s Landmark Reproductive Loss Leave Legislation to Support Grieving Parents
In a groundbreaking move, California has passed new legislation (SB 848) aimed at providing time off for employees who have experienced a reproductive loss, including miscarriages, stillbirths, and failed adoption, in-vitro fertilization, or surrogacy. The law, set to take effect on January 1, 2024, mandates that businesses allow employees up to five days of leave following such losses. While it doesn’t necessitate paid leave, it prohibits employers from retaliating against workers who take advantage of this benefit.
California Leads the Way in Reproductive Loss Leave Legislation
California joins Illinois as the second U.S. state to grant reproductive loss explicitly leave for private-sector employees, sparking a nascent movement to ensure time off for grieving and recovering would-be parents. Additionally, several cities, including Boston, Pittsburgh, and Portland, Oregon, have implemented similar policies for government employees. Some companies, such as The Goldman Sachs Group Inc. and Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo PC, have also taken the initiative to provide leave policies covering reproductive losses.
Legal experts suggest that California’s enactment of this law is likely to influence other states to follow suit, adopting similar frameworks to provide support for their workforce. Joy C. Rosenquist, an attorney at Littler Mendelson PC in Sacramento, stated, “Now that California has passed this law and put in place a framework, I do think other states are going to pick up the framework and adopt it.”
Mixed Support and Challenges
The new law passed through the California legislature with largely bipartisan support. However, the California Chamber of Commerce opposed the provision that allows up to 20 days of leave per year if an employee experiences multiple reproductive losses. The Chamber expressed concerns about the additional burden placed on California businesses, which already grapple with staffing challenges.
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This new law is just one addition to California’s extensive list of guaranteed employee leave types, which include bereavement leave, recently introduced to provide support to employees who have lost a family member. Molly Weston Williamson, senior fellow at the Center for American Progress, noted that bereavement leave is another area gaining recognition but hasn’t received protection in many states, with only a handful of states, including Colorado, Illinois, Oregon, and Washington, mandating some form of bereavement leave in private-sector workplaces.
Existing Protections and a Focus on Specific Legislation
While laws specifically addressing reproductive losses are uncommon, existing state and federal laws provide coverage for some of the same circumstances. For instance, a birthing parent experiencing a miscarriage may be entitled to leave under the Pregnant Workers Fairness Act as a disability accommodation. The federal Family and Medical Leave Act also guarantees time off for an employee’s own serious medical condition or for caring for a family member recovering from such a condition, potentially covering miscarriages and stillbirths.
However, the new laws in California and Illinois make a significant difference by specifically addressing events such as failed adoptions, surrogacy, and in-vitro fertilization, which are not typically covered by other leave laws. Sherry Leiwant, co-founder and co-president of A Better Balance, a policy group advocating for paid leave laws and worker protections, emphasizes that people have different ways of building their families, and when there’s a setback, they should have the support they need.
The Uncertainty Surrounding Abortion
One aspect that remains uncertain in these reproductive loss leave policies is how they will treat abortion. California’s law does not explicitly include abortion in the list of qualifying events. Christina Anton, an attorney with Fisher & Phillips LLP in Sacramento, pointed out that the law defines “reproductive loss event” as a failed adoption, failed surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction, making no mention of abortion.
Despite the California statute’s apparent omission, other state and federal laws likely ensure that workers who have abortions receive time off to recover. Rosenquist explains, “If you look at the definitions and the statute, it’s all geared toward an unsuccessful attempt at reproduction or adoption.” Nevertheless, the inclusion of abortion-related employment benefits has garnered criticism from anti-abortion advocates in recent times.
California’s introduction of this groundbreaking reproductive loss leave legislation serves as a milestone in ensuring the well-being of employees facing these deeply personal and challenging situations, and it has the potential to inspire other states to follow suit.
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