A miscarriage does not count as bereavement leave under federal law, and no federal statute requires employers to offer bereavement time for pregnancy loss. That said, you are not without options. The Family and Medical Leave Act treats a miscarriage as a serious health condition, the Pregnant Workers Fairness Act can require your employer to grant leave as a reasonable accommodation, a handful of states have passed reproductive loss leave laws, and many employers offer bereavement or sick leave policies that cover pregnancy loss on their own terms.
FMLA Covers Miscarriage as a Medical Condition
The Family and Medical Leave Act gives eligible employees up to 12 weeks of unpaid, job-protected leave per year for serious health conditions.1U.S. Department of Labor. Family and Medical Leave Act The Department of Labor has confirmed that time off due to pregnancy complications counts against this 12-week allotment, and a miscarriage qualifies.2U.S. Department of Labor. Family and Medical Leave The framing matters: FMLA protects your right to recover physically and to address related mental health needs, but it treats the leave as medical, not as grief.
You have to meet three eligibility tests to use FMLA. Your employer has to have at least 50 employees within a 75-mile radius, you have to have worked there for at least 12 months, and you have to have logged at least 1,250 hours during those 12 months.3U.S. Department of Labor. Fact Sheet 28 – The Family and Medical Leave Act Miss any of the three and FMLA does not apply.
The leave itself is unpaid, but your employer must maintain your group health insurance on the same terms as if you were still working. You can substitute accrued paid leave (sick, vacation, personal) for part or all of the unpaid FMLA period, and some employers require it.
The Pregnant Workers Fairness Act Can Require Leave as an Accommodation
The Pregnant Workers Fairness Act, effective June 27, 2023, requires employers with 15 or more employees to provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions.4U.S. Equal Employment Opportunity Commission. What You Should Know About the Pregnant Workers Fairness Act The EEOC’s final rule, effective June 18, 2024, explicitly lists miscarriage as one of those related conditions.5Federal Register. Implementation of the Pregnant Workers Fairness Act
Leave to recover from a miscarriage is one of the accommodations the EEOC contemplates. Its interpretive guidance uses the example of an employee requesting 10 days of leave to recover after a miscarriage.5Federal Register. Implementation of the Pregnant Workers Fairness Act The PWFA does not guarantee any fixed number of days; the amount turns on your medical situation. An employer can deny the accommodation only if it would cause “undue hardship,” meaning significant difficulty or expense. An employer also cannot force you onto leave if a different accommodation would let you keep working.4U.S. Equal Employment Opportunity Commission. What You Should Know About the Pregnant Workers Fairness Act
The PWFA is often the main option for people at smaller employers (15 to 49 employees) or those who have not been at their job long enough for FMLA. If both laws cover you, use whichever gives you more protection.
State Reproductive Loss Leave Laws
A small but growing number of states have passed laws that specifically grant leave for reproductive loss events, including miscarriage. These are the closest thing to a true bereavement leave for pregnancy loss, because they treat the loss as a distinct category rather than a medical condition.
Common features across these laws:
- Duration generally runs from 5 to 10 workdays per reproductive loss event.
- Covered events typically include miscarriage, stillbirth, failed adoptions, unsuccessful fertility treatments, and diagnoses that negatively affect pregnancy or fertility.
- You usually must take the leave within 60 days to three months of the loss.
- Some states prohibit employers from requiring documentation.
- The leave is typically unpaid, but you can usually substitute accrued paid time off.
Some of these statutes apply only to larger employers or to employees with a minimum tenure, such as 30 days on the job before the loss. If more than one loss occurs in a 12-month period, most cap total annual leave rather than granting unlimited additional time. Check your state labor department’s website or ask HR whether your state has a reproductive loss leave law and what its terms are.
One boundary worth noting: miscarriage refers to pregnancy loss before 20 weeks of gestation, and stillbirth is loss at or after 20 weeks.6Centers for Disease Control and Prevention. About Stillbirth Some states treat the two differently, and a stillbirth may trigger additional rights (such as paid parental leave for state employees) that a miscarriage does not. If your loss occurred near the 20-week line, the classification can change which protections you can use.
Leave for Partners and Spouses
Partners often need time off too, and their options are narrower. Under FMLA, an eligible employee can take leave to care for a spouse with a serious health condition, and that care includes physical support and psychological comfort.7U.S. Department of Labor. Fact Sheet 28F – Reasons That Workers May Take Leave Under the Family and Medical Leave Act Because a miscarriage qualifies as a pregnancy complication, a married spouse can use this provision to take job-protected leave to care for their partner.
Unmarried partners generally cannot. The Department of Labor’s definition of “spouse” does not extend to domestic partners, so an unmarried partner has no FMLA right to caregiving leave after their partner’s miscarriage. An unmarried partner could take FMLA leave for their own serious health condition if the loss produces a qualifying mental health condition, subject to the same eligibility rules.
Some state reproductive loss laws extend to partners regardless of marital status, and employer bereavement policies are sometimes more flexible than federal law. Both are worth checking.
What Your Employer’s Policy May Cover
Many employers offer bereavement or compassionate leave policies that go beyond what the law requires. The range is wide. Some companies provide three to five days of paid leave for pregnancy loss; others offer up to four weeks. Where no formal pregnancy loss policy exists, employers often allow you to use sick leave, personal days, or flexible schedules during recovery.
Your employee handbook or HR department is the best source for what your employer actually offers. When you contact HR, you do not have to disclose every detail. A general reference to a pregnancy-related medical condition is usually enough to start a leave request. If your employer has no policy and you are not covered by FMLA or the PWFA, negotiating directly with your supervisor or HR for unpaid time is sometimes the only route. Get any agreement in writing.
Protection from Retaliation and Privacy of Medical Information
Both FMLA and the PWFA include anti-retaliation provisions. Under FMLA, your employer cannot discharge, discipline, or discriminate against you for requesting or using leave, and cannot count FMLA absences against you in attendance policies or use them as a negative factor in hiring or promotion.8U.S. Department of Labor. Fact Sheet 77B – Protection for Individuals Under the FMLA The PWFA offers similar protection against punishment for requesting or using an accommodation, reporting discrimination, or participating in a PWFA proceeding.4U.S. Equal Employment Opportunity Commission. What You Should Know About the Pregnant Workers Fairness Act
You are not required to broadcast the reason for your leave. Under the Americans with Disabilities Act, employers must keep medical information confidential, and the EEOC has confirmed that this extends to documentation gathered under the PWFA.4U.S. Equal Employment Opportunity Commission. What You Should Know About the Pregnant Workers Fairness Act HR can process a leave request without telling your manager or coworkers why, absent a specific need for disclosure.
If Your Employer Denies Leave or Retaliates
If your employer denies leave you are entitled to, retaliates against you, or breaches confidentiality, you have places to go. For FMLA violations, file a complaint with the Department of Labor’s Wage and Hour Division. For PWFA violations, file a charge of discrimination with the EEOC. Both agencies investigate at no cost, and you may also have the right to sue.