Topline:
Under a new law Governor Newsom signed earlier this month, California workers and their partners can get up to five days of leave for a miscarriage, stillbirth, failed adoption, and other types of reproductive loss.
Why it matters: Going through a reproductive loss can traumatic, but workers didn't necessarily have guaranteed options for leave.
What's new: The new measure creates a separate category of leave specifically for “reproductive loss”, which also includes miscarriage, stillbirth, failed adoption, failed surrogacies and failed assisted reproductions. It also extends to spouses and domestic partners.
The backstory: Last year, lawmakers passed legislation that allows for five days of bereavement leave in the event of the death of a family member such as a child, parent, sibling, grandparent, grandchild, or domestic partner.
New California Law Offers Leave For Miscarriages And ‘Reproductive Loss’
California workers will be guaranteed five days off after a miscarriage, stillbirth, and other types of reproductive loss under legislation Gov. Gavin Newsom signed earlier this month.
The law, which goes into effect in January, applies to companies with five or more employees, and mandates that they give leave in the event of a “reproductive loss.”
Current state law allows for five days of bereavement leave in the event of the death of a family member, such as a child, parent, sibling, grandparent, grandchild, or domestic partner.
The new measure creates a separate category of leave specifically for “reproductive loss,” which also includes failed adoption, failed surrogacies, and failed assisted reproductions, and extends to spouses and domestic partners.
“It’s overdue, and I say that from my own experience,” said Cynthia Swaminathan, an Irvine mother and attorney who lost her daughter Nina, who was stillborn in 2020.
Varying leave policies prior to the measure
Swaminathan carried her pregnancy to full-term until a day past her due date when she went into labor. But once she and her husband got to the hospital, they learned something was wrong.
“They couldn’t find her heartbeat, and I had to go through an emergency C-section,” she said. “She had suffered an umbilical cord accident and she died during labor.”
Nina died at 40 weeks and one day.
Swaminathan said she was able to get bereavement leave through her employer, but knows that’s not always the case for families who’ve experienced a loss.
“To go through a loss of this magnitude and still be concerned about whether you're going to also lose your job on top of it because you have to — you're on survival mode.," she said. "It’s just cruel.”
Back to work ‘as if nothing happened’
Before being pregnant with Nina, Swaminathan also had suffered a miscarriage of twins. She remembers completing the miscarriage on a Sunday, and returning to work the next day. “Emotionally, you're just so fragile, and then you have to go back to work as if nothing happened.”
What Are My Rights As An Employee?
What if my employer disputes my leave or doesn't know about the law?
- Since some employers may not be aware of the law yet, "it can be helpful to email or text them articles or materials from government websites," said Sharon Terman, senior staff attorney at Legal Aid at Work. If an employee's rights are violated, they can file a complaint with the California Civil Rights Department within 3 years of the violation and can also contact Legal Aid’s Work and Family Helpline at 800-880-8047 for free, confidential advice.
- In addition, “if there is a mistreatment of the employee because they need the leave, or took the leave, the law does protect against that,” said Juliana Franco, staff attorney for the Center for WorkLife Law at the University of California, San Francisco. People can also contact their free legal hotline at (415) 703-8276 or hotline@worklifelaw.org
Do I have to show proof of my reproductive loss?
- The new law does not permit an employer to require any documentation of the need for leave, Terman said. If the worker informs their employer that they experienced a reproductive loss, that should be sufficient, and the employer must keep the information confidential, according to the law.
Do I have to be paid on leave?
- The leave does not have to be paid, but the law states that "an employee may use vacation, personal leave, accrued, and available sick leave, or compensatory time off that is otherwise available to the employee."
What if if I have multiple losses in one year?
- The law allows for an employee to take up to 20 days in one 12-month period.
Kristyn von Rotz, founder of Forever Footprints, an Orange County based nonprofit that co-sponsored the bill, said she’s talked to women who’ve miscarried in the bathroom at work before returning to work.
“Many people don't feel comfortable going into their company and saying ‘I'm not physically able to come into work because I'm actively having a loss,’” she said.
Von Rotz said she hopes the new law will not only give families the time to grieve, but raise awareness with employers about pregnancy and infant loss and lessen the stigma associated with it.
A further push for leave
While Swaminathan was able to get short-term disability after giving birth to her Nina, she wasn’t entitled to maternity leave. Her co-workers donated their own sick leave time for her to be able to take some extended time off, but is hoping this bill is one step toward allowing parents who’ve had stillborn children to be able to take family leave.
“I don't have my kid, but the entire house is ready for this baby. I am lactating. I had a C-section… I don't have a baby and then I call my job and they say I don't even have the right to maternity leave. It's a lot,” she said.
It’s what made her and her husband, Aditya Swaminathan, who’s on the board of Forever Footprints, decide they wanted to do something about the current leave laws, an effort that helped result in the new five-day leave program.
“This is now the new baseline. And I think that's a very good thing,” Aditya Swaminathan said. But he says he’ll continue to work to allow for family leave for parents who’ve experienced an infant loss like his. While he was able to take five days off after Nina’s death for bereavement, he returned to work right after.
“It’s very personal and I do it in Nina’s name,” he said. “In my world, this is the ‘Nina’ bill, and we’ll continue to build on this.”
