Effective January 1, 2011, employers with 15 or more employees are required to grant as much as 30 days of paid leave, within a one year period, for employees serving as organ donors, and up to 5 days of paid leave for employees donating bone marrow. These new provisions were added to the California Labor Code and are intended to encourage participation in organ and bone marrow donation programs by easing the financial burden on employees when missing work to undergo transplant procedures.
The new leave entitlement is separate from, and in addition to, employee leave entitlements under the Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA). Thus, an employee could be eligible for both paid organ/bone marrow donation leave and another twelve weeks of unpaid FMLA/CFRA leave for a serious medical condition related to the donation, if the employee is otherwise eligible for FMLA/CFRA leave.
To qualify, an employee must provide the employer with written verification of his or her status as an organ or bone marrow donor and the medical necessity for the donation. Other than the fact that the leave provided must be paid leave, employers' obligations are, for the most part, very similar to the rules for administering FMLA/CFRA leave. We provide the following FAQ to help you navigate through the new leave law.
How Much Time Off Must be Granted?
Employees serving as organ donors must be granted up to 30 days of paid leave within a one year period. Employees donating bone marrow must be granted up to 5 days of paid leave.
Is the Time Off Paid or Unpaid?
Under the new law, the time off is paid. However, unless otherwise provided by a collective bargaining agreement, an employer may require employees to use up to 2 weeks of accrued sick, vacation or paid time off (PTO) for bone marrow donation before the employer must pay for the leave. Additionally, the employer can require an employee to use 5 days of sick, vacation or PTO for bone marrow donation leave.
Existing collective bargaining agreements will not be disturbed with respect to the paid leave requirement. However, no collective bargaining agreement entered into after the effective date of the law may diminish the rights otherwise provided under the statute.
Must the Leave be Taken All at Once?
No. Organ or bone marrow donor leave may be taken in one or more periods of time. For example, an employee may need to take leave to participate in more than one medical procedure separated by several weeks.
Must the Employer Maintain Health Benefits During Leave?
Yes. Tthe employer must maintain the employee on any group health coverage it provides to employees during the time of the leave and must continue to make its normal premium contributions towards the employee's health care coverage.
Does the Employee Have Any Reinstatement Rights?
Yes. Upon returning from leave, an employee must be restored to the same position or to a position with equivalent status, pay and benefits. Additionally, the leave taken cannot be treated as a break in continuous service for the purpose of salary adjustments, benefits accrual or seniority.
Does the Employee Have Any Enforcement Rights?
Yes. Under the new law, employers are prohibited from retaliating against an employee for taking organ or bone marrow donation leave or for opposing an unlawful employment practice related to organ or bone marrow donation leave. An aggrieved employee has a right to sue to enforce his or her rights under the new law.
What to Do Now?
If you are a California employer with 15 or more employees you should:
- Educate managers and supervisors about the new requirements.
- Update leave policies to include this new leave right.
- Update leave request and medical verification forms.
Your contact at the Firm is ready to assist you if you have any questions about this topic or other legally mandated employee leaves of absence.
For more information, please call your contact at the Firm. (818) 508-3700, or visit us on the web, at www.brgslaw.com.
Sincerely,
Richard S. Rosenberg
Partner
BRG&S, LLP
