Pregnancy loss can be physically challenging and emotionally devastating.
While employees who work immediately following a miscarriage are at risk of worsening physical and mental health outcomes, that scenario has been the norm for most employees experiencing pregnancy loss. More than 90% of women who have had a miscarriage or stillbirth did not take a single day of leave, according to a survey by the company ratings platform InHerSight.
The following sections will help you examine current laws related to pregnancy loss, the growing movement of employer efforts and recommendations for creating a policy in your organization.
Few legal protections, but a growing emphasis
Local, state and federal laws offer only a patchwork of protections for pregnancy loss. These often depend on geographic location, physical health condition and employer size. Other protections, including 2023 bereavement laws enacted in Oregon and Illinois, offer up to two weeks off. But this time is unpaid, which can create barriers for employees who can’t afford to miss a paycheck.
The National Partnership for Women & Families reports that 14 states and 19 cities mandate paid sick leave for physical and mental health conditions that could apply to pregnancy loss. But these laws are often unclear and undercommunicated to pregnant women.
The federal Family and Medical Leave Act (FMLA) does not cover bereavement. However, it does allow employees to take up to 12 weeks of unpaid, job-protected time to address grief, rest and recovery following a miscarriage or stillbirth, according to InHerSight. FMLA applies to employees at organizations with 50 or more employees. In addition, an employee must have worked 1,250 hours over the previous 12 months to be eligible for FMLA leave.
In addition to missed paychecks, lack of awareness and communication can impede FMLA use. InHerSight reports:
- More than 75% of employees did not know that FMLA allows for leave due to miscarriage or stillbirth.
- Only 3% of employers communicated these FMLA rights to employees.
- Just 2% of individuals who have experienced a miscarriage or stillbirth took leave under FMLA.
The federal Pregnancy Discrimination Act does not provide leave due to miscarriage. However, it offers some job protections to employees grieving their loss. The act prevents employers from treating employees differently because of a miscarriage. Examples include reducing hours or wages, rescinding promotions or terminating grieving employees.
Despite the lack of laws creating employment protections for pregnancy loss, Forbes argues that miscarriage leave is becoming necessary for leading companies. Big names like Goldman Sachs, Pinterest and Liberty Mutual Insurance have recently announced policies related to miscarriage.
But these efforts are in their early stages. And miscarriages still often fall into gaps in employer policies. In the U.S., less than 9% of organizations provide paid leave for miscarriages. Another 13% offer unpaid leave, according to a survey by the International Foundation of Employee Benefit Plans (IFEBP).
When employers offer leave related to pregnancy loss, it typically falls under bereavement. But most bereavement policies allocate one to five days, with three days being the most prevalent, according to Business Insider. This time is often insufficient to deal with the physical and emotional toll of a miscarriage or stillbirth.
There are signs of change. Employers are placing more emphasis on holistic well-being and psychologically safe workplaces since the start of the COVID-19 pandemic.
The following guidance can help you fit miscarriage leave into your organization.
- Reflect company values and financials.
- Listen and communicate.
- Build trust.
Reflect company values and financials
The first step is crafting a miscarriage policy that matches your company’s values and financial standing. Often, this means a mix of paid and unpaid time off.
The length of leave may be based on your organization’s size, finances and ability to manage workloads. If you can’t afford paid leave or long leave times, you can still demonstrate empathy. Other measures include shortened work hours or days, flexible start and stop times, reduced workloads and access to mental health benefits.
As you create your policy, consider the following questions:
- How will you define pregnancy loss? Gather input from health care providers and legal counsel to fully understand the topic. Definitions may include miscarriage, unsuccessful attempts with intrauterine insemination or other reproductive technology, unsuccessful adoption processes, a diagnosis of infertility or unsuccessful surrogacy.
- Will you require verification from a health care provider?
- Which employees will be eligible for leave? This may include mothers, spouses or partners, and employees whose surrogates have lost a pregnancy.
- How long will your leave be? Determine whether it will vary based on the eligible employee or the type of loss.
- Will you offer paid leave, unpaid leave or a combination? Describe how your leave policy will work in conjunction with FMLA or other leave laws.
Once you’ve settled on the details, put your policy in writing. Include it in your employee handbook, and communicate it regularly to employees. Talking about your values in relation to your policy can enhance trust, improve visibility and increase support, even among employees who will never use the policy.
Educating employees about pregnancy loss shows support and shifts workplace expectations. It validates individuals’ feelings and encourages employees to take time to heal.
The IFEBP recommends explaining different types of pregnancy loss in your policy. For example, Stanford Medicine Children’s Health defines a miscarriage as a loss before 13 weeks of pregnancy. A stillbirth occurs when the fetus dies after 20 weeks. Some companies offer two weeks of paid leave during the first 20 weeks of pregnancy and four weeks of paid leave after 20 weeks.
The goal is not to minimize anyone’s loss. Instead, education should help your entire workforce understand and become more empathetic toward the physical and mental health aspects of pregnancy loss.
Your educational efforts should also explain:
- Related benefits, including flexible work schedules
- Access to grief counseling or other mental health services
- Your employee assistance program, if applicable
- Any employee assistance funds to help with lost wages, funeral expenses or other costs associated with the loss
Listen and communicate
In partnership with your policy, train human resources personnel and managers to discuss pregnancy loss. Instruct them to listen and validate rather than offer platitudes. Supervisors should acknowledge an employee’s emotions and the difficulty of the situation.
Questions to ask the employee may include:
- Do you want to talk about it? Is there someone you would rather talk to?
- What are the best ways we can support you?
- How can we manage your workload so you can focus on healing?
- Do you need time off? If so, we will get you information on our leave policy, FMLA and other related guidance.
- Do you need access to counseling or other mental health resources?
Everyone processes loss in their own way. Some employees may want to discuss their experience. Some may want a supervisor to tell the rest of the team about their loss. Others may not want to talk about it at all. Respecting each employee’s privacy and personal wishes is essential.
Demonstrating empathy through the points above is key to a successful miscarriage policy. But employees also need their colleagues and leaders to speak positively about and use leave.
Employees need to trust that company support is genuine. This includes not being judged for taking time off, and not being overlooked for projects or promotions. Otherwise, employees won’t use the leave and may resent that it is promoted in theory but not in practice.
The business magazine Fast Company recommends looking at usage rates of similar policies in your company. If your employees are using paid time off, parental leave and FMLA for serious health issues, they’re more likely to respond to your policy on miscarriage. However, if employees rarely take time off and are part of an always-on culture, then you can expect less uptake for this type of leave as well.
Forbes advises against referring to your leave policy as a benefit or perk because those terms could undermine the significance of pregnancy loss. Instead, your leave policy should be baked into a culture of trust and well-being.
This final step can’t be rushed. Trust is built over time. You need open communication, a supportive work environment and real-life experiences from employees who have dealt with loss and used your company’s policies to heal.
For more information
To continue exploring leave options related to miscarriage and pregnancy loss, talk with your benefits adviser. They can present best practices and data from companies of similar sizes and industries. They can also help you understand compliance with FMLA and other leave laws related to this evolving topic.