Taking Time Off After a Pregnancy Loss: Leave, Work, and Telling Your Employer

You may be recovering physically, grieving, and being asked when you’ll be back, all at once. Leave rights after pregnancy loss are patchy: some are federal, some depend on your state, and many are unpaid. Here’s what we can say with confidence, what to check, and how to ask. Laws change, so treat this as a starting point and confirm with your employer, your state labor agency, or an employment attorney.

Does the federal FMLA cover pregnancy loss?

Often, yes, if you’re eligible. The Department of Labor’s fact sheet explains that the Family and Medical Leave Act (FMLA) lets eligible employees take up to 12 workweeks of job-protected leave in a year for their own serious health condition. Eligibility requires that you work for a covered employer (a private employer with 50 or more employees, or a public agency or school), have worked for the employer for at least 12 months, have at least 1,250 hours of service in the previous 12 months, and work at a location with at least 50 employees within 75 miles.

On pregnancy loss specifically, the Department of Labor says that any period before and after childbirth when a person can’t work for physical or mental medical reasons may be a serious health condition, and gives the example that an employee may take leave to recover from childbirth, including to recover from a stillbirth. The fact sheet doesn’t name miscarriage, but A Better Balance, a legal-rights nonprofit, says miscarriage and other pregnancy loss are considered serious health conditions under the FMLA, which may cover leave to recover physically and to treat any mental health conditions that arise from the loss. In practice, whether a particular absence qualifies depends on the facts, such as incapacity and treatment, so ask HR and your provider.

Other points from the Department of Labor:

• FMLA leave can be taken all at once or in short blocks of time
• It may be unpaid or used at the same time as employer-provided paid leave, and short-term disability may run alongside it
• An employer may require medical certification, but a medical diagnosis isn’t required
• Employers can’t interfere with or retaliate against you for using FMLA rights
• Complaints can be made to the Wage and Hour Division (1-866-487-9243)

What about the Pregnant Workers Fairness Act?

The Pregnant Workers Fairness Act (PWFA) requires employers with 15 or more employees to provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation would cause undue hardship. The EEOC’s final rule gives miscarriage and stillbirth as examples of conditions for which employees can seek accommodation, and the rule text lists, among possible accommodations, the ability to use paid or unpaid leave to recover from childbirth, miscarriage, stillbirth, or other related medical conditions. A law firm’s summary adds that the rule limits documentation to the minimum necessary, and another summary notes that time off under the PWFA is unpaid unless the employer’s policies provide otherwise. Federal rules can be revised, so check the EEOC’s website for the current version.

Do any states offer more?

Some do, and this is the area that changes fastest. California’s SB 848, effective January 1, 2024, gives employees up to five days of leave after a reproductive loss, including miscarriage or stillbirth; Bloomberg Law reports it doesn’t require the leave to be paid but bars retaliation, and that Illinois had enacted a similar measure the year before. A California law firm notes it’s a separate right from bereavement or disability leave, and that other California leave, such as pregnancy disability leave, may also apply if you can’t work. Other states and cities may offer paid sick leave, medical leave, or temporary disability insurance that can cover recovery, as A Better Balance notes: if your state or locality has a paid sick leave law and you’re eligible, you may be entitled to paid sick time while recovering from a miscarriage.

Check your state labor department’s website, ask HR which laws apply to you, or contact a legal-rights organization. Don’t assume that no state law applies.

What if my employer has a bereavement policy?

Many bereavement policies were written for deaths of relatives and may or may not mention pregnancy loss. Ask HR in writing whether the policy covers it, and whether you can use sick days, paid time off, or short-term disability. Even where a policy doesn’t, you may still have the legal rights above.

What do I have to tell my employer?

Less than you might fear. You can say you need medical leave and leave it there. Under the FMLA, the Department of Labor says a medical diagnosis isn’t required for certification, though a health care provider must complete part of it if the employer requires certification. Your provider can document that you’re unable to work without describing your circumstances in detail. A short message is enough, for example:

“I’ve had a medical issue related to a pregnancy and need to take leave to recover. My doctor can provide any needed documentation. I’d like to talk with HR about what leave I’m eligible for.”

Give notice as soon as you reasonably can, put your request in writing, and keep a copy. If you’d like your manager to say as little as possible to colleagues, ask them to keep it confidential and to share only that you’re out on medical leave.

For records of the loss itself, see birth and death certificates after a stillbirth.

What if I’m the partner?

The PWFA covers the employee’s own pregnancy-related limitations; Jackson Lewis’ summary notes that the EEOC’s regulations don’t require accommodations when an employee’s partner, spouse, or family member has the condition. But you may still have options. Under the FMLA, the Department of Labor says an eligible employee may take leave to care for a spouse with a serious health condition, including a spouse recovering from childbirth. You may also be able to use bereavement leave, sick days, or paid time off, and some state leave laws may extend to partners, so check the details with HR or your state agency. See our guide on partners and pregnancy loss.

What if my employer pushes back?

Document what you asked for and what you were told. The Department of Labor says employees who believe FMLA rights were violated can file a complaint with the Wage and Hour Division or file a private lawsuit. For PWFA concerns, contact the EEOC. A legal-aid organization or an employment attorney can help you assess your situation.

What about the emotional side of going back?

Returning can be hard, especially if colleagues know or don’t know. You may want to decide in advance what you’ll say if someone asks. Our guide on what to say to someone after a miscarriage can help you explain to a friend or colleague what would be helpful. If grief is making it hard to function, see grief after miscarriage or stillbirth and consider asking your provider about additional time or support.

For other deaths, see are you entitled to time off when someone dies? and bereavement leave laws by state.

This is general educational information, not legal advice. Leave eligibility, pay, and documentation requirements depend on your employer, your state and city, and the facts of your situation, and these laws change - an employment attorney, your state labor agency, or a legal-rights organization can address your specific situation.