48 | 2025 Cal-Peculiarities ©2025 Seyfarth Shaw LLP www.seyfarth.com parent-in-law.220 Leave need not be taken all at once, but must be completed within three months of the death of the family member.221 If an employer has an existing bereavement leave policy, then leave under the employer policy and the new law run concurrently. If the employer policy does not provide a full five days of leave or does not cover certain family members now covered by law, then employees are entitled to additional unpaid time off in accordance with the new law.222 Employees may use available paid time off such as sick time, vacation, or PTO rather than taking the time off as unpaid.223 Employers may request that employees provide documentation to support their bereavement leave within 30 days of the first day of leave. Documentation may include a death certificate, published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.224 Effective January 1, 2024, California has added leave for reproductive-related losses as a subset of its bereavement leave law.225 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.”226 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.227 Leave need not be taken all at once, but must be completed within three months of the event triggering the leave.228 Employees may use available paid time off such as sick time, vacation, or PTO rather than taking the time off as unpaid.229 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 (including childbirth, loss or end of pregnancy, or recovery from childbirth, loss or end of pregnancy), bed rest, gestational diabetes, pregnancyinduced hypertension, and post-partum 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 Dec. 29, 2022), https://www.congress.gov/117/bills/hr2617/BILLS-117hr2617enr.pdf#page=1626 (last visited Mar. 11, 2025). 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).
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