There are a number of statutes in California that grant eligible employees the right to take a leave of absence for various reasons. SB848 creates a new leave of absence entitlement under CA law regarding reproductive loss. Lizbeth “Beth” West and Shauna Correia review this new protected leave in this episode of California Employment News.

Watch this episode on the Weintraub YouTube channel here.

Beth: Hello. Thank you for joining us for this installment of California Employment News, an informative video and podcast series brought to you by the labor and employment group at Weintraub Tobin. My name is Beth West, and I’m a shareholder here at Weintraub Tobin and chair of the labor and employment department. I’m joined today by my partner, Shauna Correa. As you likely know, there are a number of statutes in California that grant eligible employees the right to take a leave of absence for various reasons. Today, we’re going to discuss Senate Bill 848, which creates a new leave of absence entitlement under California law. Shauna, why don’t you start us off and explain what types of leave SB848 provides for?

Shauna: So, this is a new law that passed to provide up to five days of unpaid leave for employees who suffer a reproductive loss event. And this law fills a bit of a gap that was left by the bereavement law passed and took effect in 2023. This new law applies to any employer who has five or more employees. So, what is a reproductive loss event? A reproductive loss event is the day of, or in the case of a multiple-day situation, the final day of a failed adoption, a failed surrogacy, a miscarriage, a stillbirth, or an unsuccessful assisted reproduction. This includes, like I said, failed surrogacy and failed adoptions. Well, what does that mean? A failed adoption means that there was a dissolution or a breach of the agreement with the birth mother or legal guardian of the child to adopt the child so that the adoption does not take place or the adoption isn’t finalized because some other party contests the adoption. So, who can take leave if there is a failed adoption? Any person who would have been the parent of the adoptee, meaning the child, if the adoption had been completed. Any of those people can take leave after a failed adoption. A failed surrogacy means that there was a dissolution or breach of the surrogacy agreement with the person that was going to carry the embryo or the embryo transfer was unsuccessful and it didn’t transfer successfully to the surrogate. And so, if there is a failed surrogacy, the people who would have been the parents of the child can take leave because the surrogacy failed. This may seem to leave a little bit of a gap for the person who acted as a surrogate, who herself may have suffered a loss of the failed embryo transfer, but that person would be covered if they suffered an unsuccessful reproduction. Well, what does that mean? An unsuccessful reproduction is an unsuccessful round of either inner uterine insemination, embryo transfer, or other assisted reproductive technology procedure could involve a surrogate, or it could just involve the woman who is going to become the parent of the child. And likewise, if there is a miscarriage, stillbirth, or unsuccessful reproduction, rather, unsuccessful assisted reproduction, then the people who can take the leave are the person who is pregnant, or that person’s current spouse or, domestic partner, or another individual. If that person would have been the parent of a child born as a result of the surrogacy. So, the example there would be the parent of a child being carried by a surrogate who may have had a stillbirth or miscarriage. This statute does not provide time off, however, to get an IVF procedure done or, to obtain medications, or deal with complications with these procedures. They just deal with the loss of the child to be or the failure of an adoption or failure of a surrogacy. Those other situations might be covered by CFRA or paid sick leave. Beth, can you explain the amounts of leave that can be taken and whether it’s paid or unpaid, and talk about the employer’s obligations in approving leave?

Beth: Sure, Shauna. So SB 848 provides that an employee may take up to five days of leave following any reproductive loss event, which are those events that Shauna just discussed. However, if there’s more than one reproductive loss event experienced by an employee, an eligible employee, within a twelve month period, the employer can limit the total amount of reproductive loss leave to 20 days within a twelve month period. Now, the leave does not have to be taken consecutively, but it does have to be completed within three months of the event, entitling the employee to leave, with one exception, and that is that if an employee is qualified for and takes FMLA or CFRA or even PDL pregnancy disability leave prior to or immediately following a reproductive loss event, then the reproductive loss leave must be completed within three months of the end of that other leave of absence. Whether the reproductive loss leave is paid or unpaid depends on whether the employer had an existing leave policy in place before the law went into effect that provided paid leave for reproductive loss. If no such policy exists, the leave is unpaid, but an employee has the right under the statute to concurrently use any accrued and available vacation, PTO, or sick leave that’s otherwise available. And finally, just like with other statutes that provide employees with leave of absence rights, SB 848 makes clear that an employer may not interfere with, restrain, or deny an employee’s right to exercise their rights under the law and cannot retaliate against an employee who does exercise their rights under the law and unlike bereavement leave SB 848 does not allow employers to ask for documentation to prove a reproductive loss event in fact occurred.

Shauna: Well, thank you for that overview, Beth. That’s very helpful. That’s all we have time for today. But you can continue to find additional installments of the California employment news on our blog at www.theleblog.com or wherever you listen to your favorite podcasts. Thanks for joining. We’ll see you next time.