California’s New Miscarriage Law Gives Boost to Rare Leave Type

California’s new guarantee of time off from work following a miscarriage or other reproductive loss is part of a nascent movement to ensure leave for grieving and recovering would-be parents.

The new California measure (SB 848) will require businesses to grant employees up to five days off following a reproductive loss, which includes a miscarriage or stillbirth or a failed adoption, in-vitro fertilization, or surrogacy.

The law, which takes effect Jan. 1, 2024, doesn’t require that the leave be paid, but it does ban employers from retaliating against workers who take the time off.

California is the second state with a law explicitly granting reproductive loss leave for private-sector workers. Illinois enacted a similar measure last year.

Utah and a handful of cities—including Boston, Pittsburgh, and Portland, Ore.—have established similar time-off policies for state or local government employees. Some employers, such as The Goldman Sachs Group Inc. and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo PC, also have announced leave policies covering reproductive losses.

While California wasn’t the first state to enact reproductive loss leave, the move is likely to raise the issue’s profile and make it more likely that similar laws will spread, said Joy C. Rosenquist, an attorney at Littler Mendelson PC in Sacramento.

“We speak of California contagion all the time,” Rosenquist said. “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.”

The measure passed the California legislature with largely bipartisan support, although the California Chamber of Commerce opposed language allowing up to 20 days off per year if an employee faces multiple reproductive losses.

California businesses already struggle to maintain sufficient staffing, and this new law adds to the state’s already long list of guaranteed types of employee leave, the Chamber said in comments published in a Senate staff analysis.

California last year also became one of few states to require employers to grant bereavement leave for employees when a family member dies. Bereavement is another type of leave that’s generating more discussion of late, yet hasn’t received protection in many states, said Molly Weston Williamson, senior fellow at the Center for American Progress.

“It’s a fairly short list,” she said, noting Colorado, Illinois, Oregon, and Washington state as a few others mandating some form of bereavement leave in private-sector workplaces.

Existing Coverage

Although leave laws explicitly aimed at reproductive losses are unusual, existing state and federal laws cover at least some of the same circumstances, Williamson said.

A birthing parent who suffers a miscarriage could take leave as a disability accommodation under the Pregnant Workers Fairness Act, she said. And the federal Family and Medical Leave Act ensures time off while a worker is recovering from their own serious medical condition or caring for a family member who’s recovering, and miscarriages and stillbirths could qualify.

“California’s specific kind of new law is fairly unusual,” Williamson said. “However, those kinds of specific focused laws aren’t the only ways workers might get relevant protections.”

Workers who suffer a miscarriage or stillbirth also likely would be covered by state and local paid sick time laws, as well as state paid family and medical leave laws.

But those measures generally wouldn’t guarantee time off for events such as a failed adoption, surrogacy, or in-vitro fertilization. That’s a key difference for the new laws in California and Illinois, said Sherry Leiwant, co-founder and co-president of A Better Balance, a policy group that advocates for paid leave laws and other worker protections.

“People have different ways of having children, and whenever there is a failure people should have leave to take care of that,” she said.

Abortion Uncertainty

How abortion will be treated under reproductive loss leave policies remains an open question. The California law doesn’t specifically include it in the list of events that would qualify.

“The new law is silent on whether abortion is covered,” said Christina Anton, an attorney with Fisher & Phillips LLP in Sacramento. “As drafted, the term ‘reproductive loss event’ is defined to mean a failed adoption, failed surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction.”

Some employers have specifically included time off following an abortion. Portland’s policy for its city government employees, for instance, has a list of covered events that includes “termination, irrespective of whether deemed medically necessary.”

Potential abortion-related employment benefits have drawn criticism lately from anti-abortion advocates. In particular, they took aim at the US Equal Employment Opportunity Commission after it included abortion-related protections in its draft regulations implementing the Pregnant Workers Fairness Act.

While the California statute doesn’t appear to cover abortions, other state and federal laws likely do ensure that workers who have an abortion have time off afterward to recover, Rosenquist said.

“If you look at the definitions and the statute, it’s all geared toward an unsuccessful attempt at reproduction or adoption,” she said.