California’s Reproductive Loss Leave: A Targeted Leave Right Within California’s Broader Protected Leave Landscape
California employers may easily overlook reproductive loss leave because it applies only in a limited set of specifically defined circumstances. But employers should be aware of this form of legally protected leave, which was added to the Fair Employment and Housing Act (FEHA) effective January 1, 2024. Government Code section 12945.6 contains California’s reproductive loss leave law.
Coverage: What Qualifies as a Reproductive Loss Event
The safest way to understand this leave is to begin with a look at the statutory definition. Government Code section 12945.6(b)(1) defines a reproductive loss event as:
(A) Miscarriage.
(B) Stillbirth.
(C) Failed adoption.
(D) Failed surrogacy.
(E) Unsuccessful assisted reproduction.
(F) Abortion.
This definition extends beyond traditional pregnancy loss and includes a range of outcomes tied to family formation. When in doubt about coverage, employers should refer to the statute, other authoritative resources, and consult with employment counsel, if necessary, rather than rely on assumptions about what qualifies.
The statutory definitions also make clear that coverage is not limited to the person who physically experiences the event. The law extends to the employee, the employee’s current spouse or domestic partner, or another individual if the employee would have been the parent of the child.
A few examples help illustrate the statute. An employee may be entitled to reproductive loss leave after the employee’s own miscarriage. An employee may also be entitled to leave after the employee’s current spouse or domestic partner experiences a miscarriage or stillbirth. Another example would be an unsuccessful assisted reproduction attempt, such as a failed embryo transfer or intrauterine insemination involving the employee, the employee’s spouse or domestic partner, or another individual if the employee would have been the parent. The leave may also be triggered when an adoption fails before finalization or when a surrogacy arrangement breaks down or the embryo transfer to the surrogate fails.
Eligibility: Broad Coverage Across California Workplaces
The eligibility requirements are straightforward. The law applies to private employers with five or more employees and to public employers of any size. Employees are eligible after 30 days of employment.
In practical terms, that means this law reaches a broad range of California workplaces across both the private and public sectors. It is not limited to large employers or long-tenured employees. Many California employers should assume this leave right may arise and should be prepared to respond appropriately.
As mentioned, the leave is not limited to an employee’s own reproductive loss event. An employee may take leave following the employee’s own reproductive loss event or that of another person, such as a spouse or partner, if the employee would have been the parent of the child.
Employers should therefore also focus on the parental relationship, when the situation applies, not just whether an employee physically experienced the event.
Duration and Timing: Five Days With Flexibility
The statute provides for up to five days of reproductive loss leave per qualifying event. Employees may take the leave nonconsecutively, and if multiple reproductive loss events occur within a 12-month period, the employer is not required to provide more than 20 total days of reproductive loss leave during that period unless the employer’s policy is more generous.
Except where another qualifying state or federal leave is already in play, reproductive loss leave must be completed within three months of the event. If, before or immediately after the reproductive loss event, the employee is on or elects to take another qualifying leave, the employee may take reproductive loss leave within three months after that other leave ends.
This flexibility allows employees to take time away when it is actually needed, rather than forcing all leave to be taken immediately after the event.
Reproductive loss leave is separate from, and in addition to, other protected leave rights and time-off entitlements that may apply depending on the circumstances, including, for example, California Family Rights Act (CFRA) leave, amily and Medical Leave Act (FMLA) leave, Pregnancy Disability Leave, and paid sick leave under the Healthy Workplaces, Healthy Families Act.
If an employer maintains an existing leave policy that applies to reproductive loss events, the employee must take reproductive loss leave in accordance with that policy. But the employer’s policy cannot provide less than California’s statutory minimum.
Paid or Unpaid: How Compensation Is Handled
Reproductive loss leave itself is not required to be paid. But that does not mean the employee necessarily goes unpaid. Where there is no applicable paid leave policy covering the absence, employees must be allowed to use available vacation, sick days, personal days, or PTO during reproductive loss leave.
For California employers, that includes accrued paid sick leave under the Healthy Workplaces, Healthy Families Act. California employers generally must provide eligible employees at least 40 hours or five days of paid sick leave per year under that separate law.
There is also a separate wage-replacement question that may arise in some cases. California’s State Disability Insurance (SDI) program may provide partial wage replacement when an eligible worker is unable to work because of a non-work-related illness, injury, pregnancy, or childbirth, including pregnancy, childbirth, or related medical conditions. So, depending on the situation, an employee dealing with a qualifying reproductive-loss-related medical condition may separately apply to the Employment Development Department (EDD) for SDI benefits while on reproductive loss leave.
In practice, the entitlement to time off is required, while whether the leave is paid depends on the employee’s available leave balances, the employer’s policies, and in some cases the possible applicability of SDI benefits from the state.
Confidentiality and Documentation
The statute imposes clear confidentiality obligations. Employers must maintain the confidentiality of information provided in connection with reproductive loss leave, subject to limited disclosure as required by law or as necessary to internal personnel or legal counsel.
The law does not require an employee to submit documentation in support of the leave request.
In practice, employers should be cautious about pressing for intrusive details beyond what is minimally necessary to confirm eligibility for the leave because those inquiries can quickly drift into an unwarranted invasion into the employee’s medical privacy.
Anti-Retaliation Protections
Because reproductive loss leave is part of FEHA, the statute’s anti-retaliation protections apply fully. An employer cannot fire, demote, fine, suspend, discipline, or otherwise discriminate against someone for requesting or taking reproductive loss leave.
The statute also protects participation in proceedings related to rights under the section.
Employers should also remember that an employee’s good-faith request for reproductive loss leave is itself protected activity. The statute does not only prohibit retaliation for actually taking qualifying leave. It also makes it an unlawful employment practice to interfere with, restrain, or deny the exercise of, or the attempt to exercise, rights under the section. For that reason, an employer should proceed carefully even where it believes the employee may ultimately be mistaken about eligibility.
Enforcement and Exposure Under FEHA
Denial of reproductive loss leave is not merely a policy violation. Because reproductive loss leave is part of FEHA, the statute expressly provides that it is an “unlawful employment practice” for an employer to refuse to grant a request by an eligible employee to take up to five days of reproductive loss leave following a reproductive loss event. It is also an unlawful employment practice to retaliate, or to interfere with, restrain, or deny the exercise of, or the attempt to exercise, rights under the section.
As a result, these claims fall within FEHA’s enforcement framework. The California Civil Rights Department (CRD) administers and enforces FEHA, and the CRD fact sheet explains that an employee who believes reproductive loss leave rights were violated may file a complaint with CRD and obtain a right-to-sue notice to pursue the case in civil court.
FEHA’s remedial structure also includes potential attorney’s fees, costs, and expert witness fees in appropriate civil actions.
Action Items for Employers
Employers should take concrete and proactive steps now rather than wait to react when an employee request is received for the first time.
First, review and update leave policies and handbook language to expressly address reproductive loss leave. Written policies should be facially compliant with Government Code section 12945.6 so employees understand the contours of their rights and supervisors and managers understand the company’s obligations. The company’s written policies are not just for employees. They are also an important internal resource for leadership, HR, and those responsible for responding to leave requests consistently and lawfully.
Second, update internal leave administration practices so HR and managers are trained and understand the basic framework. That includes who is eligible, what types of events qualify, the five-day entitlement, the three-month usage window, the 20-day annual cap for multiple events, and the rule that this leave is separate from and in addition to other protected leave where applicable.
Third, train supervisors and managers not to demand documentation reflexively. The statute does not require supporting documentation, and managers should not improvise their own proof requirements when an employee raises a reproductive loss leave issue.
Fourth, reinforce confidentiality expectations. Information relating to reproductive loss leave should be shared only on a true need-to-know basis consistent with the statute. These are highly sensitive circumstances, and loose internal discussion creates both legal and workplace-culture problems.
Fifth, make sure payroll and leave administration personnel understand that although reproductive loss leave itself is not necessarily paid, employees may elect to use available paid leave, including accrued paid sick leave, vacation, PTO, personal leave, or other qualifying paid time off. Depending on the facts, there may also be separate SDI eligibllity due to the employee’s own disabling condition.
Sixth, coordinate reproductive loss leave carefully with other leave laws. Because this leave may overlap with CFRA, FMLA, pregnancy disability leave, or other protected leave rights, employers should avoid assuming that one leave entitlement exhausts or replaces another.
Seventh, be mindful that reproductive loss events and related medical conditions may trigger the need for a disability-related interactive process under FEHA and, where applicable, the Americans with Disabilities Act (ADA), depending on the circumstances.
Eighth, remind decision-makers that denial of qualifying reproductive loss leave is an employer ‘unlawful employment practice’ under FEHA, and that retaliation, interference, or mishandling confidentiality may create separate employer exposure and, in some circumstances, individual exposure.
Common Pitfalls
Employers can run into trouble with this statute in predictable ways. Common missteps include treating the leave as optional, requesting documentation that the statute does not require, limiting the leave to the employee who physically experienced the event, or assuming that another leave law already in play replaces or exhausts the entitlement. These issues tend to arise not from bad intent, but from applying familiar leave practices in a setting where the rules are different.
Closing Perspective
Reproductive loss leave is a targeted leave right that is widely applicable to California employers and employees, and arises in defined circumstances. When those circumstances do arise, employers should approach them carefully, thoughtfully, and with a clear understanding of the statutory framework. If questions arise in a specific situation, employers should seek legal guidance from a knowledgeable and experienced California employment law attorney. These requests and associated leave management should be handled with the same discipline and care employers bring to other FEHA-protected rights.
For a broader overview of the protected leaves landscape, we have addressed many of California’s other legally protected leave categories in our earlier article, What Employee Leaves Are Legally Protected in California?