California workers will be guaranteed five days off after a miscarriage, stillbirth, and other types of reproductive loss under legislation Gov. Gavin Newsom signed earlier this month.
The law, which goes into effect in January, applies to companies with five or more employees, and mandates that they give leave in the event of a “reproductive loss.”
Current state law allows for five days of bereavement leave in the event of the death of a family member, such as a child, parent, sibling, grandparent, grandchild, or domestic partner.
The new measure creates a separate category of leave specifically for “reproductive loss,” which also includes failed adoption, failed surrogacies, and failed assisted reproductions, and extends to spouses and domestic partners.
“It’s overdue, and I say that from my own experience,” said Cynthia Swaminathan, an Irvine mother and attorney who lost her daughter Nina, who was stillborn in 2020.
Swaminathan carried her pregnancy to full-term until a day past her due date when she went into labor. But once she and her husband got to the hospital, they learned something was wrong.
“They couldn’t find her heartbeat, and I had to go through an emergency C-section,” she said. “She had suffered an umbilical cord accident and she died during labor.”
Nina died at 40 weeks and one day.
Swaminathan said she was able to get bereavement leave through her employer, but knows that’s not always the case for families who’ve experienced a loss.
“To go through a loss of this magnitude and still be concerned about whether you're going to also lose your job on top of it because you have to — you're on survival mode.," she said. "It’s just cruel.”
Before being pregnant with Nina, Swaminathan also had suffered a miscarriage of twins. She remembers completing the miscarriage on a Sunday, and returning to work the next day. “Emotionally, you're just so fragile, and then you have to go back to work as if nothing happened.”
What if my employer disputes my leave or doesn't know about the law?
Do I have to show proof of my reproductive loss?
Do I have to be paid on leave?
What if if I have multiple losses in one year?
Kristyn von Rotz, founder of Forever Footprints, an Orange County based nonprofit that co-sponsored the bill, said she’s talked to women who’ve miscarried in the bathroom at work before returning to work.
“Many people don't feel comfortable going into their company and saying ‘I'm not physically able to come into work because I'm actively having a loss,’” she said.
Von Rotz said she hopes the new law will not only give families the time to grieve, but raise awareness with employers about pregnancy and infant loss and lessen the stigma associated with it.
While Swaminathan was able to get short-term disability after giving birth to her Nina, she wasn’t entitled to maternity leave. Her co-workers donated their own sick leave time for her to be able to take some extended time off, but is hoping this bill is one step toward allowing parents who’ve had stillborn children to be able to take family leave.
“I don't have my kid, but the entire house is ready for this baby. I am lactating. I had a C-section… I don't have a baby and then I call my job and they say I don't even have the right to maternity leave. It's a lot,” she said.
It’s what made her and her husband, Aditya Swaminathan, who’s on the board of Forever Footprints, decide they wanted to do something about the current leave laws, an effort that helped result in the new five-day leave program.
“This is now the new baseline. And I think that's a very good thing,” Aditya Swaminathan said. But he says he’ll continue to work to allow for family leave for parents who’ve experienced an infant loss like his. While he was able to take five days off after Nina’s death for bereavement, he returned to work right after.
“It’s very personal and I do it in Nina’s name,” he said. “In my world, this is the ‘Nina’ bill, and we’ll continue to build on this.”
