According to the Mayo Clinic, roughly 10 to 20% of known pregnancies end in miscarriage. The physical and emotional needs of someone who experiences pregnancy loss vary from one individual to another. Indonesia, India, Taiwan, and New Zealand are a few countries that provide some form of paid leave for employees following a miscarriage or stillbirth. This type of leave is much less common in the United States.

According to the International Foundation report, Employee Benefits Survey: 2020 Results, 8.7% of U.S. organizations surveyed offer paid leave related to miscarriages while 13.2% offer unpaid leave related to miscarriage or pregnancy loss.

Miscarriage leave or leave for other types of pregnancy loss often falls under an employer’s bereavement leave policy—if one is available—but could also be included in other paid-time-off policies. Employers are not required by law to offer bereavement leave to their employees, though they may wish to consider whether they will allow the use of bereavement or other leave in this situation.

Are employees entitled to time off under other federal, state or city laws for pregnancy loss?

Yes, in some instances. There are various federal, state and city laws that may be applicable to employees.

Several federal laws may allow for employee time off after a miscarriage or other pregnancy loss. An employee could be eligible for leave under the Family and Medical Leave Act (FMLA) if the miscarriage is considered a serious health condition. FMLA provides employees (at employers with 50+ employees) with up to 12 weeks of unpaid, job-protected leave per year.

Aside from federal laws, some state and local laws may allow employees to use paid sick leave, depending on their location. According to the National Partnership for Women & Families, 14 states, 19 cities and four counties have laws mandating paid sick leave for medical needs, which can apply to employees dealing with mental and physical health issues due to pregnancy loss. The amount of time off permitted and eligibility rules vary by location.

An employee at an organization with 15+ employees may be entitled to time off as a reasonable accommodation under the Americans with Disabilities Act (ADA) if, for example, the employee experiences severe depression that results in a disability diagnosis (an impairment that limits a major life function) after a miscarriage. Other federal laws may require accommodations depending on the situation.

Currently, two states have laws requiring private companies to provide bereavement leave.

• Oregon was the first state to mandate bereavement leave. The law requires companies with 25+ employees to offer up to two weeks of unpaid bereavement leave to eligible employees.
• Illinois has a child bereavement leave law for employers with 50+ employees, entitling employees to a maximum of two weeks of unpaid bereavement leave following the death of a child. Current legislation, Illinois Senate Bill 3120, seeks to expand the Child Bereavement Act by providing up to ten days of unpaid leave following a pregnancy loss, stillbirth or unsuccessful intrauterine insemination, among other issues negatively impacting pregnancy or fertility.  

Several cities have adopted laws on bereavement leave for government (city or public) employees. Washington, D.C. recently expanded its bereavement leave for public employees who lose a child. The law provides two weeks of paid leave to city employees who lose a child under the age of 21, including stillbirths.

Pittsburgh became the first U.S. city to pass legislation to provide city employees and employees’ partners with up to three days of leave due to causes like miscarriage or other pregnancy loss. The leave applies equally to parents, regardless of gender, as well as to same-sex couples.

Portland, Oregon also provides bereavement leave for certain employees experiencing pregnancy loss. The city’s bereavement leave policy allows city employees to take up to three days of paid leave if they’ve had a miscarriage, stillbirth or any other type of pregnancy loss.

Note: The pandemic has triggered a rise in expanded benefits, so check for other applicable laws in your area related to this evolving leave type. Even if there are no specific laws applicable in an organization’s location, an employer may want to show support for their employees’ mental and physical health with an updated policy that incorporates pregnancy loss leave.

What should be included in a pregnancy loss policy, whether offered as part of a bereavement leave or a standalone policy?

• The definition of pregnancy loss as it relates to the policy. Verify definitions with your attorney or other service provider.
• Who is covered by the policy (mother, father, other family members, close friends). If the policy allows the use of leave after a miscarriage, the leave should be offered equally, regardless of the employee’s gender.
• The amount of time off allowed
• Whether the time off is paid or unpaid
• Whether certification from a health care provider is required (e.g., Portland)

Companies with pregnancy loss policies include:

• Pinterest. Provides four weeks of paid leave for pregnancy loss.
• Inkhouse. Offers two weeks of paid leave to all regular, full-time employees who experience miscarriage or pregnancy loss within the first 20 weeks. After that, the company’s standard parental leave policy kicks in, which offers 20 weeks of paid parental leave.
• Goldman Sachs. Provides employees 20 days of paid leave if they, a spouse or a surrogate has a miscarriage or stillbirth.
• Mintz. Offers 15 days of paid leave to employees following a miscarriage and five days after a failed fertility treatment, adoption or surrogacy.

Once a policy has been drafted, what should be considered when implementing the policy?

Employers with policies that include leave for pregnancy loss should provide education and empowerment to employees. Not all employees have experience with this type of loss. Employers should:

• Provide education on the basics of pregnancy loss. Different types of pregnancy loss can affect employees differently. Employers should provide clear definitions of the types of loss in their policy to help all employees understand and support their co-workers. This helps to build a culture of trust and empathy.
• Explain the reasoning for implementing the policy. This sets the tone for what the company believes in.
• Examine the policy to decide whether it should be adjusted for different stages of pregnancy loss.
• Provide managers with the tools to support employees who may be at different stages of pregnancy loss.

Will an increasing number of employers provide paid leave for pregnancy loss in 2022? Stay tuned to the International Foundation for updates.

Developed by International Foundation Information Center staff. This does not constitute legal advice. Please consult your plan professionals for legal advice.

Amanda Wilke, CEBS
Information/Research Specialist at the International Foundation

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