Most employers have an obligation under federal law to let employees take leave time to deal with their own or family-related medical issues, as well as pregnancies and adoptions. Under the Family and Medical Leave Act (FMLA), employers typically aren’t obligated to pay employees for this time off. California law provides greater benefits as well as protections for employees in our state. For example, a new category of leave, for “reproductive loss” took effect at the beginning of this year.
Some types of reproductive-related losses, such as stillbirths and miscarriages, could potentially qualify for bereavement leave under prior law. The new law not only codifies that the loss of a child in one of these circumstances warrants some time off for both prospective parents. It also includes an adoption or surrogacy plan that falls through and unsuccessful reproductive technology procedures.
Employer responsibilities under the law
All private employers with at least five employees and all public employers must offer this leave. Employees are entitled to take up to five days off. They don’t have to be taken consecutively, but they must be taken within three months after the loss. The leave is available to both prospective parents, regardless of gender and marital status.
If an employer already offers leave for reproductive loss, they’re required to abide by their own policy if it’s more generous than that required by law. Further, while the law doesn’t specifically mandate that these five days off be paid, it does state that employees are allowed to use “certain other leave balances otherwise available to the employee, including accrued and available paid sick leave.”
The law also states that employers can’t legally retaliate against employees who legitimately seek to use this leave. That means they can’t cut their hours after they return, demote or fire them. They also can’t use the loss as reason to harass or discriminate against them.
Privacy protections
Further, employers are limited in how much information they can require an employee to provide about the reproductive loss. Certainly, these are private and sensitive matters that many people find difficult to talk about — especially just after they’ve occurred — or having everyone know about. Employers are required to treat any information they learn as confidential. Further, employees are required to provide documentation of the loss.
Anyone who believes that their employer has not abided by the law and hasn’t been able to resolve the matter with their employer satisfactorily can benefit from getting legal guidance to better understand their rights and review their options.