Ann Kuzee
Attorney, TELUS Health (Formerly LifeWorks)
October 25th, 2023

California’s New Reproductive Loss Leave Law

On October 10, 2023, California became the second state (after Illinois) to enact an unpaid reproductive loss leave law (SB No. 848). This new leave law becomes effective January 1, 2024, and is an expansion to California’s bereavement leave (§12945.7), which provides unpaid leave upon the death of an employee’s family member.

Under this new law, a covered employer must provide an eligible employee up to 5 days of reproductive loss leave following a “reproductive loss event” which “means the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction.” The law also allows additional time off “[i]f an employee experiences more than one reproductive loss event within a 12-month period, an employer shall not be obligated to grant a total amount of reproductive loss leave time in excess of 20 days within a 12-month period.”

The law is broad sweeping and includes most employers in its coverage. A covered “Employer” means either “a person who employs five or more persons to perform services for a wage or salary” or the “state and any political or civil subdivision of the state, including, but not limited to, cities and counties.”

Employees may take this unpaid leave intermittently, but it must be completed within three months of the reproductive loss event, and it must be taken pursuant to any existing applicable leave policy of the employer. For example, if the employer has an existing applicable leave policy that allows for paid time off, then the leave must be paid. Otherwise, if no such applicable leave policy exists, the reproductive loss leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

Among other rules, the law also includes several definitions and requirements related to maintaining confidentiality and making it unlawful for an employer to “interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided.” Additionally, it is important to note that this law makes leave under its provisions a separate and distinct right from any right under the California Fair Employment and Housing Act.

California employers should review and update their employment policies and procedures and communicate with and educate Human Resources, management, and employees.

Amendment to California’s Paid Sick Leave Law

On October 4, 2023, Senate Bill 616 amended California’s paid sick leave law, also known as California’s Healthy Workplaces, Healthy Families Act, by increasing the amount of paid sick leave employers are required to provide California employees effective January 1, 2024.

There is a lot packed into this amendment when combined with existing law under the Healthy Workplace, Healthy Families Act. Below are several key highlights associated with this new amendment.

• Covered Employer: A covered “Employer” means any person employing another and includes the state and municipalities.
• Eligibility: The law keeps the requirement that an employee who works in California for the same employer for 30 or more days within a year from the start of employment is entitled to paid sick days and an employee must satisfy a 90-day employment period before they may use paid sick days as they are accrued.
• Paid Sick Leave Entitlement: Increases the minimum amount of paid sick leave time eligible employees must accrue each year from three days (24 hours) to five days (40 hours) per year.
• Accrual Rate or Frontloading Leave: The law keeps the existing accrual rate of one hour for every 30 hours worked in place. However, an employer may use a different accrual method, provided an employee accrues no less than 24 hours of paid sick leave by the 120th calendar day of employment or each calendar year, or in each 12-month period, and no less than 40 hours of accrued paid sick leave by the 200th calendar day of employment or each calendar year, or in each 12-month period.” Employers may also continue to frontload the entire paid sick leave amount the same as they do now.
• Annual Usage Cap: The annual usage cap has been increased from twenty-four hours to forty hours.
• Carry Over: Accrued paid sick days carry over to the following year of employment. However, an employer may limit an employee’s use of accrued paid sick days to 40 hours or five days in each year of employment, calendar year, or 12-month period.
• Annual Accrual Cap: An employer has no obligation to allow an employee’s total accrual of paid sick leave to exceed 80 hours or 10 days, provided that an employee’s rights to accrue and use paid sick leave are not limited other than as allowed under this law.
• Leave Purposes: The law allows employees to take paid leave for themselves or their family members for diagnosis, preventive care, for care of an existing health condition, or for specified purposes when the employee is a victim of domestic violence, sexual assault, or stalking.
• Leave Increments: An employee may determine how much paid sick leave they need to use, provided that an employer may set a reasonable minimum increment, not to exceed two hours, for the use of paid sick leave.
• Employer PTO Policies: Employers may use existing PTO policies as long as those policies comply with the minimum requirements of the law for the accrual, carry over and use of sick leave.
• Calculating Paid Sick Leave: An employer is permitted to calculate paid sick leave using any of the following calculations:

(1) Paid sick time for nonexempt employees is to be calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek.

(2) Paid sick time for nonexempt employees is to be calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.

(3) Paid sick time for exempt employees is to be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

• Employer Payment Due Date: An employer is required to provide payment for sick leave taken by an employee no later than the payday for the next regular payroll period after the sick leave was taken.

Same as with California’s New Reproductive Loss Leave laws, employers should review their employment policies and procedures to ensure they align with this new law and communicate with and educate Human Resources, management, and employees.

Resources:

1. Illinois General Assembly – Illinois SB3120 – Reproductive Loss
2. AB-1949 Employees: Bereavement leave. (2021-2022): Amendment to the California Family Rights Act.
3. California Government Code section 12945.7 – Bereavement.
   Effective January 1, 2023, AB 1949 added section 12945.7 to the California Government Code to require employers with more than five employees to provide eligible employees with five days of unpaid bereavement.
4. SB-848 Employment: leave for reproductive loss. (2023-2024)
5. SB-616 Sick days: paid sick days accrual and use. (2023-2024)
6. AB-1522 Employment: paid sick days (2013-2014). Enacted the Healthy Workplaces, Healthy Families Act of 2014