'The statute is really light on guidance in this area for employers,' says lawyer offering tips for HR
A new bill awaiting approval by California Governor Gavin Newsom will provide protected leave to eligible employees for reproductive loss events.
In preparation for managing what may be a sensitive topic -- with potential legal ramifications -- HRD spoke with experts from the legal and health care fields about how HR can prepare.
Under the Fair Employment and Housing Act (FEHA), SB 848 would make it illegal for an employer to refuse requests for up to five days of paid leave to an employee who has suffered reproductive loss.
While the bill would be a welcome relief to employees who experience reproductive loss, it will be a fine line for HR to walk, said Caroline Donelan, L&E partner at Blank Rome LLP.
“This is going to be something that we're all navigating together, because while California has wonderful benefits, it also has very strict privacy laws,” said Donelan.
“Employers are going to have to navigate this new protected leave not only from an operational standard of figuring out how to cover for these kinds of absences, but also how to make sure employees are using the leave for the right reason.”
What is reproductive loss?
Approximately half of all pregnancies end in miscarriage, wrote the bill’s author senator Susan Rubio, noting that “reproductive loss is one of the most traumatizing events a person can experience, and unfortunately, it is far too common.”
The bill defines a reproductive loss event 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.” It also specifies that the leave applies to a “person, the person’s current spouse or domestic partner, or another individual, if the person would have been a parent”.
According to the bill, failed surrogacy is the “dissolution or breach of a surrogacy agreement, or a failed embryo transfer to the surrogate.” Failed adoption is defined as the “dissolution or breach of an adoption agreement with the birth mother or legal guardian, or an adoption that is not finalized because it is contested by another party.”
Unsuccessful assisted reproduction means “an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure.”
How should HR talk about reproductive loss?
Debi Jenkins Frankle, of the Calabasas Counseling and Grief Recovery Center in California, said the proposed bill is an important step for those grieving what she calls an invisible loss.
“It is huge,” she said. “Just recognizing this loss, it's validated by having a proposed bill. So often, what exacerbates or creates other psychological pain such as depression, anxiety, stress, is the loss that is underneath, the grief that we don't want to acknowledge.”
This type of grief is known as “disenfranchised grief”, Jenkins Frankle explained, which is why it is so important for HR professionals to at least acknowledge what the person is going through. Pay attention to nonverbal cues like body language, and offer acknowledgement without asking for details.
“What's so crazy-making about this kind of loss is that, typically, there is no public funeral. There's no public ritual for people to be able to come and acknowledge and offer support,” she said. “Just the fact that they have the right to request – this is a huge thing.”
Reproductive loss and issues of privacy
The bill stipulates extra protection around privacy and confidentiality in the case of reproductive loss, but falls short of giving detailed parameters. This is where HR will need to be careful, said Donelan.
“The statute is really light on guidance in this area for employers, in terms of how this information can be obtained and then what you do with the information,” she said, and suggested designating specific individuals in HR who act as “gatekeepers” of sensitive information and inform managers on a need-to-know basis.
Larger organizations can benefit from the use of an Employee Assistance Program (EAP) to help navigate this, Donelan said. Smaller companies, however, will have to be cautious.
“They're going to have to really tread carefully, with wanting to support the employee and then not crossing any lines of confidentiality or over-asking,” she said. “So I think it's important that you let the employee take the lead, in terms of what they want to share and if they want to share, without overstepping and inquiring about things that might be just completely private and not something that they want to talk about at work.”
Proactive communication and notice of rights for reproductive loss leave
An important best practice with reproductive loss leave is to be proactive with notifying employees of their rights up front, said Donelan. This means updated handbooks at the time of hire, and if an employee informs HR that they are pregnant, ensuring that they are aware of all the rights of leave available to them, including for reproductive loss.
“It's not the employer’s job to go ask all their employees if they've had a reproductive loss event,” Donelan said. “But it is our job to make sure the employees know their rights under the law.”
Similar to the family bereavement leave offered under the same act, the reproductive loss leave would have to be taken within three months of the event. In the case of multiple loss events in one year, an employer would be obligated to provide leave of up to 20 days.
Learn who is considered immediate family for bereavement leave, it's process, and how many days it lasts in this article.
Governor Newsom has until October 14 to approve or veto the bill, and if approved it will likely go into effect on January 1, 2024.