Question:

One of my employees has asked for time off to donate a kidney to a relative. What are my obligations to this employee?

Answer:

A new law just went into effect that addresses this situation. Effective January 1, 2011, employers with fifteen or more employees must provide paid leave to employees who wish to donate an organ and bone marrow. The proponents of this legislation view it as a way to encourage individuals to register to donate organs and bone marrow without having to worry about wage loss.

Under the new law, beginning at California Labor Code section 1508, employers with fifteen or more employees must provide a paid leave of absence not exceeding thirty days to an employee who is an organ donor in any one-year period for the purpose of donating his or her organ to another person. Employers must provide a paid leave of absence not exceeding five days to an employee who is a bone marrow donor in any one-year period for the purpose of donating his or her bone marrow to another person. The leave can be taken in one or more periods. Note that the person receiving the organ or bone marrow does not have to be a relative of the employee.

To receive this type of leave of absence, an employee must provide written verification to his or her employer that he or she is an organ or bone marrow donor, and that there is a medical necessity for the donation of the organ or bone marrow. Unfortunately, the statute provides no guidance on whom the source of the written verification must be, but at a minimum, the employee should obtain such a written verification from his/her physician. It also does not address the amount of notice that an employee must give to an employer prior to going out on this type of leave.

The new law specifies that any period of time during which an employee is required to be absent from his or her job by reason of being an organ or bone marrow donor is not considered a break in his or her continuous service for the purpose of the employee’s right to salary adjustments, sick leave, vacation, annual leave, or seniority. In other words, the absence is treated as time worked when determining those specific benefits. Furthermore, employers that provide their employees with health insurance benefits are required to maintain and pay for coverage under a group health plan for the entire duration of the absence. If the employee is subject to a collective bargaining agreement or employee benefit plan that provides more generous leave rights that those provided for by the new law, then the employer must comply with that agreement or plan. But if the collective bargaining agreement or benefit plan provides lesser rights than those under the new law, the employer must provide those benefits set forth in the new law.

As a condition of an employee’s initial receipt of the donation leave, employers may require employees to take up to two weeks of earned but unused sick or vacation leave for organ donation, and up to five days of earned but unused sick or vacation leave for bone marrow donation. But if the employees are subject to a collective bargaining agreement that provides that employees do not need to use sick or vacation leave first, the employer may not impose that requirement. Bone marrow and organ donation leave may not be taken concurrently with any leave available under the Family Medical Leave Act or the California Family Rights Act.

When an employee returns from organ or bone marrow donation leave, the employer must restore that employee to the position held by him or her when the leave began, or to a position with equivalent seniority status, employee benefits, pay, and other terms and conditions of employment.

An employer may not retaliate against an employee for exercising his or her right to this type of leave. Specifically, an employer may not interfere with, restrain, or deny an employee’s exercise or attempt to exercise his or her right to this type of leave. Additionally, an employer may not discharge, fine, suspend, expel, discipline, or in any other manner discriminate against an employee for exercising his or her right to this type of leave or for opposing a practice made unlawful by this statute. For example, an employer may not take action against an employee who complains that a co-worker did not receive his or her rights under this law. An employee may bring a civil lawsuit against an employer for denying rights under this law and/or retaliating against the employee for exercising those rights.

Employers with fifteen or more employees must ensure that their supervisorial employees and human resource staff are aware of this new law. Additionally, employers with employee handbooks should update their policies to reflect this new type of mandatory paid leave.
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