©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 47 Effective January 1, 2024, California has added leave for reproductive-related losses as a subset of its bereavement leave law.203 A “reproductive loss event” is defined as “the day or for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth or an unsuccessful assisted reproduction.”204 Covered employers must provide up to five days of leave for a reproductive loss event, up to a maximum of 20 days within a 12-month period.205 Leave need not be taken all at once, but must be completed within three months of the event triggering the leave.206 Employees may use available paid time off such as sick time, vacation, or PTO rather than taking the time off as unpaid.207 The law does not specify that employers may require documentation in connection with reproductive-related loss leave. 1 DFEH regulations define the four months as the equivalent of what the employee works in four months (17.33 weeks or 693 hours based upon a 40-hour workweek). If an employee’s hours vary from month to month, then the average number of hours per week is used, calculated by looking back for 17.33 weeks. 2 Cal. Code Regs. §§ 11042(a)(1), 11035(l). 2 DFEH regulations define pregnancy-related conditions to include morning sickness, preeclampsia, pre- and post-natal care, and postpartum depression. 2 Cal. Code Regs. § 11035(f). 3 Gov’t Code § 12945(a)(1). 4 2 Cal. Code Regs. § 11043(a). 5 Sanchez v. Swissport, Inc., 213 Cal. App. 4th 1331 (2013) (employee placed on bed rest during most of her pregnancy, and then terminated after 19 weeks of pregnancy leave—three months before her due date—may have been entitled to additional, disability leave, under FEHA, if the employer could not show that the extended leave would have imposed an undue hardship on the company); 2 Cal. Code Regs. § 11047. 6 Gov’t Code § 12945(a)(2)(C). 7 2 Cal. Code Regs. § 11041(c). The position to which an employee is transferred must have the equivalent pay and benefits as the employee’s regular job. 8 Gov’t Code § 12945(a)(2)(A). Employers may recover from employees the premium paid to maintain their coverage during a leave to the extent that (1) employees fail to return to work after the pregnancy disability leave, and (2) the failure to return from leave is for a reason other than either (a) taking leave under the California Family Rights Act or (b) the continuation, recurrence, or onset of a condition that entitles the employee to a pregnancy disability leave or other circumstances beyond the employee’s control. 9 An even longer leave could be required if pregnancy-related conditions require further leave under the reasonable-accommodation provisions of FEHA. See Sanchez v. Swissport, Inc., 213 Cal. App. 4th 1331 (2013); 2 Cal. Code Regs. § 11047. 10 Gov’t Code § 12945(a)(4). 11 Pregnant Workers Fairness Act, H.R. 2617-1626, 117th Cong. §§ 101-109 (signed into law December 29, 2022), https://www.congress.gov/117/bills/hr2617/BILLS-117hr2617enr.pdf#page=1626 (last visited March 9, 2023). 12 “Covered employers” include private and public sector employers with at least 15 employees. 13 29 U.S.C. § 207(r)(1) (employee who needs to express milk “for her nursing child for 1 year after the child’s birth” is entitled to (a) reasonable break time and (b) a private place, other than a bathroom, that is free from intrusion). 14 See, e.g., Gonzales v. Marriott Int’l, Inc., 142 F. Supp. 3d 961 (C.D. Cal. 2015) (denying motion to dismiss gestational surrogate’s claims for failure to accommodate and discrimination where she expressed milk for the child she delivered for several months and then continued to express milk for her own health benefits and for donation purposes). 15 Lab. Code §§ 1030-1032. 16 SB 142, 2019 bill amending Lab. Code §§ 1030, 1031, 1033 and adding Lab. Code § 1034. 17 Labor Code § 1031 (f-i). 18 SB 142, 2019 bill amending Lab. Code §§ 1030, 1031, 1033 and adding Lab. Code § 1034. 19 Lab. Code § 1033(b), (c) (noting that Labor Commissioner can seek civil penalties for violations). 20 See, e.g., Gonzales v. Marriott Int’l, Inc., 142 F. Supp. 3d 961 (C.D. Cal. 2015) (denying motion to dismiss gestational surrogate’s claims for failure to accommodate and discrimination where she expressed milk for the child she delivered for several months and then continued to express milk for her own health benefits and for donation purposes). 21 San Francisco Lactation in the Workplace Ordinance, San Francisco Police Code Article 331, https://codelibrary.amlegal.com/codes/san_francisco/latest/sf_police/0-0-0-49176 (last visited March 5, 2022). 22 A covered employer must be engaged in any business or enterprise in California and directly employ five or more employees within any state of the United States, District of Columbia, or any U.S. territory. There is no requirement that the five employees work at the same location or work full time. 2 Cal. Code Regs. § 11087(d). 23 12945.2(a). SB 1383, 2020 bill amending Gov’t Code § 12945.2 to remove geographical eligibility requirement. 24 SB 1383, 2020 bill amending Gov’t Code § 12945.6 and amending, repealing, and adding Gov’t Code § 12945.2. 25 Gov’t Code § 12945.2. Special eligibility rules apply to employees working for an air carrier as a flight deck or cabin crew member, who are eligible if they have 12 months of service and meet certain other requirements. Gov’t Code § 12945.2(r).
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