California Leave Laws Pop Quiz

My employee just informed me she experienced a miscarriage. I want to be sure we give her the time she needs and is entitled to during this difficult time. Which California leave laws may apply?

1. Reproductive Loss Leave
2. Mandatory Paid Sick Leave
3. Pregnancy Disability Leave
4. California Family Rights Act Leave
5. All of the above

You guessed it! The correct answer is “E”–all of the above may apply. In California, it is important to remember that employees often have multiple leave entitlements that apply depending on the circumstances. A seasoned HR professional will also consider whether the leaves should run concurrently (at the same time) or consecutively (separately). Let’s unpack all of this below.

Reproductive Loss Leave

Reproductive loss leave is a relatively new law (effective January 1, 2024) and covers employers with 5 or more employees. It provides up to 5 days of protected bereavement leave for a “reproductive loss event.” This includes events such as miscarriages, failed adoptions and surrogacies, stillbirths, and unsuccessful assisted reproductions.

In most cases, employees have up to 3 months to use the leave. However, the employee is not required to use all five days at once. Also, an employee is entitled to 5 days for each reproductive loss event. For example, if an employee has multiple miscarriages, they are entitled to 5 days of protected time off for each miscarriage. Employers do have the option to cap this leave at 20 days total in a 12-month period (but make sure to explicitly include this in your handbook policies!).

Another important note is that employers are not allowed to request certifying and/or medical documentation for this leave.

Reproductive loss leave is unpaid, but employees may opt to use available accrued time, such as paid sick leave, as discussed below.

Mandatory Paid Sick Leave

In California, paid sick leave applies to employers of all sizes. Almost all employees are entitled to 5 days or 40 hours (whichever is greater) of paid sick leave (PSL) per year. Any time your employee (or their covered family member) experiences a medical issue, you should assess whether they have this protected time available to use. In the case of a reproductive loss event, California allows the employee to use any available paid sick leave, vacation, or PTO to cover their leave, so they can get paid.

While you should not force an employee to use their mandatory paid sick leave, they may elect to do so for a reproductive loss event. In that case, PSL would run concurrently (at the same time) with their reproductive loss leave.

PDL & CFRA/FMLA

Finally, employers with 5 or more employees should also consider whether the employee is eligible for pregnancy disability leave (PDL), California Family Rights Act leave (CFRA), and/or federal Family and Medical Leave (FMLA—if you have 50 or more employees).

The law is clear that reproductive loss leave is separate from, and in addition to, these other types of leave. This means reproductive loss leave does not run concurrently with PDL, CFRA or FMLA. Instead there is a special rule: If an employee is on another type of leave during the reproductive loss event, they can take reproductive loss leave within three months of finishing the other form of leave.

For example, you may have an employee on PDL who then experiences a miscarriage. If their doctor certifies they are still considered disabled by pregnancy, the employee may first exhaust their PDL entitlement (which can be up to 4 months). Once that concludes, the employee may then elect to use their 5 days of reproductive loss leave (within 3 months of their PDL end date, for example).

Leave laws are complex and carry a lot of considerations. You can ease the HR burden by becoming a member of CEA, for as low as $125/month. This includes unlimited calls and emails with our live subject matter experts to get the clarification you need, as well as access to our extensive library of employer resources! Join CEA today.