11.3 Mandatory California Statutory Leaves (Bereavement, Jury/Witness, Organ/Bone Marrow, Military & School)

11.3 Mandatory California Statutory Leaves (Bereavement, Jury/Witness, Organ/Bone Marrow, Military & School)

Executive Summary: California law imposes an extensive array of statutory leave obligations beyond pregnancy and family medical leave. Employers operating in California must navigate specific headcount thresholds, employee eligibility rules, paid versus unpaid requirements, and strict confidentiality protections across diverse life events. Key statutory mandates include Bereavement Leave (AB 1949 / Gov Code § 12945.7) and Reproductive Loss Leave (SB 848 / Gov Code § 12945.6) for employers with 5+ employees; Organ and Bone Marrow Donor Leave (Labor Code § 1508 et seq.) requiring up to 30 business days of fully paid leave for employers with 15+ employees; School Activities Leave (Labor Code § 230.8) for employers with 25+ employees; and universal mandates applicable to all employers, including Jury, Witness, and Crime Victims Leave (Labor Code § 230).

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Bereavement Leave (AB 1949 / Gov Code § 12945.7)

Effective January 1, 2023, Assembly Bill 1949 codified mandatory bereavement leave under the California Fair Employment and Housing Act (FEHA).

┌─────────────────────────────────────────────────────────────────────────────┐
│                     CALIFORNIA BEREAVEMENT LEAVE (AB 1949)                  │
├─────────────────────────────────────────────────────────────────────────────┤
│ • Governing Statute: California Government Code § 12945.7                   │
│ • Employer Threshold: Five (5) or more employees                            │
│ • Employee Eligibility: At least thirty (30) days of service prior to leave │
│ • Entitlement: Up to five (5) days upon death of a qualifying family member │
│ • Timing: Days need not be consecutive; must conclude within 3 months of    │
│   the date of death                                                         │
│ • Compensation: Unpaid (employee may elect to use vacation, PTO, or sick)   │
│ • Qualifying Family: Spouse, child, parent, sibling, grandparent,           │
│   grandchild, domestic partner, parent-in-law                               │
│ • Documentation: Employer may request documentation within 30 days of leave │
└─────────────────────────────────────────────────────────────────────────────┘

1. Covered Family Members

Bereavement leave applies strictly to the death of the employee's spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law (Gov Code § 12945.7(a)(1)). Note that aunts, uncles, cousins, and nieces/nephews are not covered family members under the statutory baseline, though employer policies may expand coverage.

2. Operational Rules & Timing

• Non-Consecutive Days: The five days of leave do not need to be taken consecutively. An employee may take two days immediately following the death for funeral arrangements and three days several weeks later for a memorial service or estate resolution.
• Three-Month Window: All five days must be completed within three (3) months of the date of the family member's death (Gov Code § 12945.7(c)).
• Compensation: The statutory leave is unpaid. However, the employee has the absolute legal right to substitute accrued vacation, universal PTO, accrued paid sick leave, or any other employer-provided compensatory time off.
• Documentation: The employer may require the employee to provide documentation of the death within 30 days of the first day of leave. Acceptable documentation includes a death certificate, published obituary, or written verification of death, burial, or memorial service from a mortuary, funeral home, or religious institution. All documentation must remain confidential.

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Reproductive Loss Leave (SB 848 / Gov Code § 12945.6)

Effective January 1, 2024, Senate Bill 848 enacted an innovative, separate leave entitlement within the FEHA for employees experiencing reproductive loss.

1. Coverage & Eligibility

• Employer Threshold: Five (5) or more employees.
• Employee Eligibility: Employed for at least thirty (30) days prior to the commencement of the leave.
• Entitlement: Up to five (5) days of unpaid leave per reproductive loss event.
• Qualifying Reproductive Loss Events:
  1. Miscarriage (spontaneous loss of pregnancy prior to 20 weeks gestation);
  2. Unsuccessful Assisted Reproduction (e.g., failed in vitro fertilization [IVF], intrauterine insemination [IUI], or embryo transfer);
  3. Failed Adoption (dissolution or breakdown of an adoption agreement prior to legal finalization);
  4. Failed Surrogacy (dissolution or breakdown of a surrogacy arrangement);
  5. Stillbirth (loss of pregnancy at 20 weeks gestation or later).

2. Operational Limits & Strict Confidentiality

• Multiple Events Cap: If an employee experiences more than one reproductive loss event within a 12-month period, the employee may take up to five days per event, subject to a statutory aggregate cap of twenty (20) days within a 12-month period.
• Three-Month Window: The leave must be completed within three (3) months of the reproductive loss event.
• Both Parents Covered: The entitlement applies to the person who experienced the loss, their spouse or domestic partner, or an intended parent.

[!CAUTION] The Absolute Ban on Documentation: Under Government Code § 12945.6(e), employers are strictly forbidden from requiring an employee to provide medical documentation, clinic records, death certificates, or any proof of a reproductive loss event! The employer must accept the employee's request in good faith and maintain strict confidentiality.

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Organ and Bone Marrow Donor Leave (Labor Code §§ 1508–1513)

Under the California Bone Marrow and Organ Donation Leave Act, California requires employers to provide substantial paid leave to employees who donate bone marrow or organs.

┌─────────────────────────────────────────────────────────────────────────────┐
│                 ORGAN & BONE MARROW DONATION LEAVE RULES                     │
├─────────────────────────────────────────────────────────────────────────────┤
│ • Governing Statute: California Labor Code §§ 1508 through 1513             │
│ • Employer Threshold: Fifteen (15) or more employees                        │
│ • Employee Eligibility: Must provide written medical certification of need  │
│ • Bone Marrow Donation: Up to FIVE (5) business days of PAID LEAVE          │
│ • Organ Donation: Up to THIRTY (30) business days of PAID LEAVE, PLUS       │
│   up to THIRTY (30) additional business days of UNPAID LEAVE                │
│   (Total up to 60 business days in a one-year period!)                      │
│ • Measurement: Business days (not calendar days) in a 12-month period       │
│ • Benefits: Must maintain group health coverage throughout leave            │
│ • FMLA/CFRA Non-Concurrency: Does NOT run concurrently with FMLA or CFRA!   │
└─────────────────────────────────────────────────────────────────────────────┘

1. Mandatory Paid Leave Obligations

• Bone Marrow Donors: Up to five (5) business days of paid leave in any one-year period.
  • The employer may require the employee to use up to five (5) days of accrued sick leave or vacation/PTO, but if the employee has no accrued leave, the employer must still pay the employee's full salary for the 5 days.
• Organ Donors: Up to thirty (30) business days of paid leave in any one-year period, plus an additional thirty (30) business days of unpaid leave (enacted via AB 1223), for a potential total of 60 business days of job-protected leave.
  • For the paid organ donation period, the employer may require the employee to use up to two weeks (10 business days) of accrued sick leave or vacation/PTO. If the employee lacks accrued leave, the employer must pay the full regular wages for all 30 business days out of employer funds.

2. Key Procedural Protections

• Business Days Standard: Entitlements are calculated in business days (working days), not calendar days.
• No FMLA/CFRA Concurrency: Under Labor Code § 1510, donor leave does not run concurrently with FMLA or CFRA leave. It is a completely separate statutory entitlement.
• Benefits & Seniority: Health benefits must be maintained at employer expense, and leave cannot be treated as a break in continuous service for seniority or pension purposes.

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Jury, Witness, and Court Protective Leaves (Labor Code § 230)

Applicable to all employers regardless of size, California Labor Code § 230 guarantees job protection for civic duties and victim protections.

1. Jury and Witness Duty (Labor Code § 230(a)–(b))

• Jury Service: An employer cannot discharge or discriminate against an employee for taking time off to serve on an inquest jury or trial jury, provided the employee gives reasonable advance notice.
• Witness Subpoena: An employer cannot discharge or discriminate against an employee for appearing in court as a witness pursuant to a lawful subpoena or court order.
• Compensation: Statutory leave is unpaid, but employees may choose to use accrued vacation, PTO, or personal leave. Employers cannot force exempt employees to forfeit entire weekly salaries for partial-week jury absences under FLSA and California salary basis rules.

2. Victims of Domestic Violence, Sexual Assault, Stalking, or Violent Crime (Labor Code §§ 230(c)–(d) & 230.1)

• All Employers (Any Size): Must permit victims of domestic violence, sexual assault, stalking, or crimes causing physical/psychological injury to take time off to obtain restraining orders, injunctive relief, or legal protection for themselves or their children.
• Employers with 25 or More Employees (Labor Code § 230.1): Must provide additional unpaid leave to obtain medical care, psychological counseling, services from a crisis shelter, or to participate in safety planning/relocation.

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School Activities & Emergency Leaves

1. School and Child Care Activities Leave (Labor Code § 230.8)

• Employer Threshold: Twenty-five (25) or more employees working at the same location.
• Eligible Employees: Parents, guardians, stepparents, foster parents, or grandparents with custody of a child attending kindergarten through grade 12 or a licensed child care facility.
• Entitlement: Up to forty (40) hours per calendar year to:
  1. Find, enroll, or reenroll a child in school or licensed child care;
  2. Participate in school or child care activities (subject to a statutory cap of eight (8) hours in any single calendar month);
  3. Address a child care provider or school emergency (the 8-hour monthly limit does not apply to emergencies, though the 40-hour annual cap remains).
• Notice & Compensation: Reasonable advance notice required; unpaid, but employee may substitute accrued vacation or PTO.

2. School Discipline Appearance (Labor Code § 230.7)

Applicable to all employers regardless of size, an employer cannot discharge or discriminate against a parent/guardian who is requested to attend a classroom session pursuant to California Education Code § 48900.1 following their child's suspension.

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Military & Emergency Public Service Leaves