SB 848: New Bereavement Leave Requirement for Employee’s Reproductive Loss

On January 1, 2024, all California public agency employers, including cities, counties and special districts, and all other California employers with 5 or more employees, are required to allow employees who have been employed for at least 30 days to take up to 5 days of bereavement leave for a reproductive loss. In the event the employee has more than one reproductive loss within a 12-month period, the employee may take up to 20 days of bereavement leave in that 12-month period. The employee may take the leave on non-consecutive days.

What is a “Reproductive Loss”?
The new law (Government Code section 12945.6) defines “reproductive loss” as the following:

1. a failed adoption as a result of a dissolution or breach of an adoption agreement by the biological parent or guardian, or an adoption that is not finalized because it has been contested by another party;

2. a failed surrogacy because of the dissolution or breach of the surrogacy agreement, or the failed embryo transfer to the surrogate;

3. a miscarriage by the employee, the employee’s current spouse or domestic partner, or another individual if the employee would have been a parent of the child born as a result of the pregnancy;

4. a still birth resulting from the employee’s pregnancy, the pregnancy of the employee’s current spouse or domestic partner, or another individual if the employee would have been a parent of the stillborn baby;

5. an unsuccessful assisted reproduction, which may include an unsuccessful round of artificial insemination or of an assisted reproductive technology procedure (such as an embryo transfer, or an egg, sperm, or embryo donation). This event applies to an employee, the employee’s current spouse or domestic partner, or another individual if the employee would have been a parent of a child born as a result of the assisted reproductive technology.

Is the Reproductive Bereavement Leave Paid Leave?
Unless the employer’s policy or labor agreement provides for paid leave for reproductive loss, the leave is unpaid. However, the employee may use accrued vacation, paid personal leave, accrued and available sick time, or available compensatory time off to receive pay for the leave.

Are There Limits on When the Leave Must be Completed?
Generally, the leave must be completed within three months of the reproductive loss. However if, prior to or immediately following the reproductive loss, the employee is on, or elects to be on, Pregnancy Disability Leave, California Family Rights Act leave, or any other leave entitlement under State or Federal law, the employee must complete the Reproductive Loss Bereavement leave within three months of the end date of the other leave.

Other Notable Requirements of the New Law
Employers are prohibited from interfering with or denying a request to take this leave; and from retaliating against, or discriminating against an employee for requesting or taking the leave, or otherwise exercising or attempting to exercise rights under the new law.

Employers must maintain the confidentiality of any employee requesting a Reproductive Bereavement Leave, and must not disclose information concerning the reason for the leave, except to internal employees who have a need to know the information or to legal counsel.

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