Time off work after a failed IVF roundWhat California law gives you

Since January 1, 2024, Government Code section 12945.6 has given workers time off after a “reproductive loss event.” One of those events is unsuccessful assisted reproduction, which the law defines as “an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure.” That covers a round of intrauterine insemination (IUI), and IVF is a common example of an assisted reproductive technology procedure.

Up to 5 days for each unsuccessful round

• You can take up to 5 days off after each round that does not work. The days do not have to be in a row.
• You have 3 months to use them. For an event that lasts several days, the clock starts on the final day.
• If you are on another protected leave before or right after the loss, the 3 months start when that leave ends.
• If you have more than one loss in 12 months, your employer does not have to give more than 20 days in total.

Who counts

The law covers you if you would have been a parent of a child born as a result of the pregnancy. The procedure can be your own, your current spouse’s or domestic partner’s, or another person’s. If you are working with a surrogate, a failed embryo transfer to the surrogate is covered too, as a failed surrogacy.

Which employers must give it

Your employer must have 5 or more employees, or be the state or a city, county or other public employer. You must have worked there at least 30 days before the leave starts.

Is it paid?

The days follow your employer’s existing leave policy. If no policy covers them, they can be unpaid, but you may choose to use vacation, personal leave, sick leave or comp time. Our full guide to the 5-day loss leave covers every rule.

The 5 days cover the loss itself. For appointments, monitoring and procedures, paid sick leave is often the tool to reach for.

• California employers must give at least 40 hours or 5 days of paid sick leave a year, whichever is more. You can use it after 90 days on the job.
• You can use it for diagnosis, care or treatment of a health condition, and for preventive care. Fertility testing and treatment are medical care.
• You can use it for a family member too, including a spouse or registered domestic partner going through treatment.
• Your employer is not required to ask why you are using sick leave. For a planned appointment, give advance notice. For something unexpected, give notice as soon as practical.
• Your employer cannot deny you accrued sick days or discipline you for using them.

If treatment leads to a pregnancy, more rights begin. A pregnancy-related condition that a provider says keeps you from working can qualify for up to 4 months of PDL.

California’s Fair Employment and Housing Act (FEHA) already treats pregnancy and related medical conditions as part of “sex.” It covers employers with 5 or more employees, and its ban on harassment covers employers with just 1.

Starting January 1, 2027, AB 2563 spells out that sex discrimination includes discrimination based on pregnancy or related medical conditions, including fertility, whether actual or perceived. The Legislature says this clarifies existing law rather than creating a new right.

A second protection may also apply. Since 2023, FEHA has protected reproductive health decision making, which includes a decision to use or access a medical service for reproductive health. An employer also cannot require you to disclose information about those decisions to get or keep your job or a benefit.

It is unlawful for an employer to deny your 5 days, to interfere with them, or to retaliate against you for taking them. It is also unlawful to deny accrued sick days or to punish you for using them. Under FEHA, your employer cannot punish you for opposing discrimination or for filing a complaint.

Retaliation can be a firing, a demotion, lost shifts or a sudden string of bad reviews. Write down what happened and when.

There are deadlines. You generally have 3 years to file a complaint with the Civil Rights Department (CRD), and 1 year after its right-to-sue notice to file a lawsuit. Our guides to retaliation claims and filing a CRD complaint explain the process.