What Is California’s SB 726 Reproductive Loss Law?

California has expanded its employee leave entitlements through Senate Bill 848, which amends the state’s Fair Employment and Housing Act. This legislation provides job-protected leave for affected employees. The law, which took effect January 1, 2024, establishes a new category of protected time off, distinct from existing bereavement or sick leave policies, for individuals navigating a reproductive loss event.

Employer and Employee Eligibility

The law, codified in the Government Code, applies to a broad range of workplaces. It covers all public sector employers, regardless of their size. For private sector businesses, the requirement to provide this leave is triggered when the employer has five or more employees.

To be eligible for reproductive loss leave, an individual must have been employed by their current employer for at least 30 days prior to the start of the leave. There is no minimum number of hours worked associated with this eligibility, making it accessible to both full-time and part-time workers. The law is also inclusive in who can take the leave, extending eligibility to an employee who experienced the loss themselves or whose spouse or partner did, if the employee would have been a parent.

Qualifying Reproductive Loss Events

The legislation specifically defines five distinct circumstances that qualify as a “reproductive loss event,” triggering an employee’s right to take leave. These definitions are central to understanding the scope of the law and when it can be applied.

• A failed adoption, which occurs when an adoption is not finalized or an agreement is dissolved by a birth parent or legal guardian.
• A failed surrogacy, which can happen if a surrogacy agreement is dissolved or if a medical procedure like an embryo transfer is not successful.
• A miscarriage, which is the loss of a pregnancy before the 20th week.
• A stillbirth, defined as the loss of a pregnancy after the 20th week.
• An unsuccessful assisted reproduction, a category covering situations such as a failed intrauterine insemination or a failed in vitro fertilization (IVF) embryo transfer.

Leave Provisions and Conditions

An eligible employee is entitled to take up to five days of leave for each qualifying reproductive loss event. This time is intended to allow the individual to manage the personal and logistical aftermath of the loss. The law requires that this leave be completed within three months of the date of the event.

The five days of leave do not need to be taken consecutively. This flexibility allows an employee to use the time as needed, whether for a single block of days or intermittently to attend appointments or manage personal needs.

By default, the leave provided under this law is unpaid. An employee, however, has the option to use any accrued paid time off they have available. This can include vacation days, personal leave, or paid sick leave, allowing the employee to receive pay during their absence if they choose to substitute their accrued benefits.

The law also sets an annual limit on the total amount of this type of leave. An employer is not obligated to grant more than 20 days of reproductive loss leave within a 12-month period.

Request and Confidentiality Procedures

When requesting leave, an employee is expected to provide notice to their employer as soon as practicable under the circumstances.

A central component of the law is the requirement for employer confidentiality. Any information an employee shares regarding their request for reproductive loss leave must be kept confidential by the employer. Disclosure is limited to internal personnel or legal counsel on a need-to-know basis, or as otherwise required by law.

While an employer can have a policy requiring documentation for leave requests, the law does not explicitly grant employers the right to demand it. If an employer’s existing policy does allow for it, they must maintain the confidentiality of any documents provided, such as a note from a healthcare provider.

The law includes anti-retaliation provisions. It is unlawful for an employer to discriminate, retaliate, or take any adverse employment action against an employee for requesting or taking reproductive loss leave. This protection ensures that employees can exercise their right to this leave without fear of negative consequences to their job status.