As a California employer, it can be difficult to keep up with the ever-changing state laws related to wages, discrimination, contracts and paid and unpaid leaves. Some employers (and employees) may not even realize that California requires employers to allow employees to take up to five days off work if they have suffered a “reproductive loss.”
What qualifies as a “reproductive loss” under the law? It includes a(n):
- Miscarriage
- Stillbirth
- Unsuccessful reproductive technology procedure such as in vitro fertilization (IVF).
- Failed adoption
- Failed surrogacy
These last two can happen suddenly and unexpectedly if a surrogate or birth parent breaches the agreement or something else goes wrong with the birth or (in the case of surrogacy) an embryo transplant.
Either prospective parent, regardless of gender, qualifies for this leave. It doesn’t have to be taken all at once, but it must be taken within three months after the loss.
Some employers may already include reproductive loss under qualifying events for paid leave. If they don’t, according to the California Civil Rights Department, they “must let employees use any available vacation time, sick days, personal days, or PTO to cover their reproductive loss leave so they can get paid.” If an employee doesn’t have any accrued paid time off available, the employer is not required to pay them for this time off.
Respecting an employee’s privacy and feelings
It’s crucial for employers to ensure that all management, supervisory and Human Resources staff respect and protect employees’ privacy and feelings during a difficult time. The law states that employers are required “to maintain employee confidentiality relating to reproductive loss leave.”
Some people may not personally consider it a “loss” that an IVF attempt failed or that a surrogate or birth parent backed out of an agreement. However, for prospective parents – especially those who have been on a long and stressful journey to bring a child into their family, it can be heartbreaking. The law also prohibits employers from retaliating against an employee for exercising their rights under the law to take this leave.
Employers who have questions or concerns about complying with the law are wise to get legal guidance. This can help them to avoid costly and stressful employment issues later.