Do I Get Time Off After a Miscarriage in California?

We are sorry for your loss. This guide is here to answer the practical questions so you can focus on taking care of yourself and the people close to you.

What is reproductive loss leave?

Since January 1, 2024, California has required covered employers to give time off after a "reproductive loss event" (Gov. Code § 12945.6(b)(1)). Senate Bill 848 added it to the Fair Employment and Housing Act as a separate and distinct right (Gov. Code § 12945.6(f)).

What counts as a reproductive loss?

The law covers five kinds of loss (Gov. Code § 12945.6(a)(7)):

• A miscarriage
• A stillbirth
• A failed adoption, such as an adoption agreement that falls through
• A failed surrogacy, including a failed embryo transfer to the surrogate
• An unsuccessful assisted reproduction, such as an unsuccessful round of intrauterine insemination or another assisted reproductive technology procedure

The loss does not have to be your pregnancy. A miscarriage, stillbirth, or unsuccessful assisted reproduction counts if it happened to you, your current spouse or domestic partner, or another person, as long as you would have been a parent of the child (Gov. Code § 12945.6(a)(6), (a)(9), (a)(10)). Failed adoptions and surrogacies cover the person who would have been the child's parent (Gov. Code § 12945.6(a)(4), (a)(5)).

Who is eligible?

Two things have to be true:

• Your employer has five or more employees. Public employers, including the state, cities, and counties, are covered too (Gov. Code § 12945.6(a)(3)).
• You have worked there at least 30 days before your leave starts (Gov. Code § 12945.6(a)(2)).

How many days do I get?

Up to five days for each loss (Gov. Code § 12945.6(b)(1)). If you suffer more than one loss within 12 months, your employer does not have to give more than 20 days total in that 12-month period (Gov. Code § 12945.6(b)(1)).

Do the days have to be in a row?

No. Your employer must let you take the days nonconsecutively (Gov. Code § 12945.6(b)(2)). You could take two days right away and save the rest for a medical follow-up, a memorial, or a day when you simply cannot face work.

How soon do I have to use it?

Generally, within three months of the loss (Gov. Code § 12945.6(b)(3)(A)). There is an exception. If you are on another kind of protected leave right before or right after the loss, such as pregnancy disability leave or California family leave, you have three months from the end of that other leave to finish your reproductive loss leave (Gov. Code § 12945.6(b)(3)(B)).

Is the leave paid?

It depends on your employer's policy. The leave is taken under any existing leave policy your employer has (Gov. Code § 12945.6(b)(4)(A)). If no policy applies, the leave can be unpaid. In that case, you may use vacation, personal leave, accrued and available sick leave, or compensatory time off so you still get paid (Gov. Code § 12945.6(b)(4)(B)).

Will my employer keep this private?

The law requires your employer to keep your request confidential (Gov. Code § 12945.6(e)). Information about your leave can be shared only with internal staff or counsel who need to know, or as the law requires.

Can I be punished for taking this leave?

No. It is an unlawful employment practice for an employer to refuse to hire, fire, demote, fine, suspend, expel, or discriminate against you because you took reproductive loss leave (Gov. Code § 12945.6(c)). The same protection applies if you gave information or testimony about someone's reproductive loss leave. Your employer also cannot interfere with, restrain, or deny your right to take the leave, or your attempt to take it (Gov. Code § 12945.6(d)).

What if I need more time to recover physically?

Five days may not be enough after a miscarriage or stillbirth. If your doctor says you cannot do your job while you recover, you may qualify for pregnancy disability leave. California's regulations define "disabled by pregnancy" to include loss or end of pregnancy and recovery from it (Cal. Code Regs., tit. 2, § 11035(f), (u)). Employers with five or more employees must provide up to four months of pregnancy disability leave per pregnancy, as needed, while you are actually disabled (Gov. Code § 12945(a)(1); Cal. Code Regs., tit. 2, §§ 11035(h), 11042). There is no minimum length of service to qualify (Cal. Code Regs., tit. 2, § 11037).

Does pregnancy discrimination law still protect me?

Yes. Under California's Fair Employment and Housing Act, "sex" includes pregnancy, childbirth, and medical conditions related to pregnancy or childbirth (Gov. Code § 12926(r)(1)). Employers also may not harass you because of pregnancy or a related medical condition (Cal. Code Regs., tit. 2, § 11036). If you are treated worse at work because of your pregnancy or your loss, those protections may apply. Our guide to pregnancy rights at work in California walks through them.

What should I do now?

• Tell your employer you are taking reproductive loss leave. A short email creates a record of the date and your request.
• Ask whether the days are paid under company policy, and if not, ask to use your sick leave, vacation, or other paid time.
• Keep track of the three-month window and how many days you have used.
• Talk to your doctor if you need more time to recover, and ask about pregnancy disability leave.
• Save any messages if your employer refuses the leave, pushes back, or treats you differently after you return.

Take the time you need. The law gives it to you for a reason.

This article is general information about California and federal law as of its date, not legal advice for your situation. Laws change, and the right move depends on your facts.