California's new law grants 5 days of bereavement leave for reproductive loss

Employers may need to reconsider their definition of loss when it comes to bereavement leave — or states might do it for them. 

California's new law requires employers to grant their workers up to five days of leave after they experience reproductive loss through a miscarriage or stillbirth, as well as a failed adoption, IVF or surrogacy process. While the law doesn't require the leave to be paid, employers are prohibited from retaliating against workers who use this new leave policy. Going into effect on Jan. 1, 2024, California will be the only state other than Utah to implement a similar policy.

California's reproductive loss law is by no means perfect. Still, it could inspire other states and cities to expand their bereavement leave policies, says Dr. Lisa Becht, a double board-certified fertility specialist at HRC Fertility.

Read more: How to make fertility loss a part of bereavement leave

"Going through something like IVF or the adoption process is very time-consuming and very stressful," she says. "When there's a negative outcome, that's a huge loss and you need to grieve."

Employees who suffer from a miscarriage could potentially qualify for leave through the disability accommodation under the Pregnant Workers Fairness Act, or the Family and Medical Leave Act, but that leaves out a lot of employees who are struggling to grow their families. Dr. Becht also points out that five days doesn't necessarily give employees enough time to physically or mentally recover. If they have a miscarriage, severe blood loss may lead to a stay in the hospital for a blood transfusion. On the mental health end, there's no set timeline for grief, underlines Dr. Becht. 

"With IVF, the patient may have already seen the embryo's picture, know their gender or given it a name — when they get that negative pregnancy test, they are grieving," she says. "In the adoption process, they may have already been matched with a baby, then something changes and they aren't getting a child. People should be able to take time off without worrying about losing their jobs."

Read more: Employees are picking up second jobs to gain fertility benefits

Still, Dr. Becht believes five days is a good starting point. She encourages California employers to fully embrace the policy, and try to make it an extension of any paid bereavement leave they already have. Dr. Becht asks all employers to reflect on whether they are fostering an environment where employees would feel comfortable sharing their experiences with loss — and if they have policies or benefits that are inclusive. 

"A lot of times reproductive loss isn't talked about, and a patient might not feel comfortable telling their employees," says Dr. Becht. "If the employer just recognized it as a kind of loss, that could at least help some patients feel more comfortable."

Read more: Three days is not enough: 4 things employers should know about bereavement

Beyond Utah and California, cities like Boston, Pittsburgh, and Portland have also adopted reproductive loss policies. Dr. Becht is hopeful California's latest move marks the start of a country-wide conversation about how businesses define loss and bereavement. The U.S. could definitely improve the social safety nets available to parents. 

"Other countries recognize these kinds of [losses] as needing leave, but the United States hasn't," says Dr. Becht. "But this law is something people have been pushing for a long time, so it's exciting to see it come to fruition, and hopefully other states will follow suit."