August 24, 2011
 Compliance Matters

Governor Brown Signs Bill Enhancing State's Paid Organ and Bone Marrow Donation Leave Law

  

      Senate Bill No. 272 amends Labor Code Section 1510, clarifying and enhancing California's law mandating paid leaves of absence for employees participating in organ or bone marrow donation. The law provides that 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 within a one year period for employees donating bone marrow.

    

     The organ and bone marrow donation paid leave of absence provisions are part of 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 amendments clarify that the 30 days of paid leave for organ donors and the 5 days of paid leave for bone marrow donors are to be counted as business days, not calendar days. Further, the one year period for measuring how much leave can be taken is measured starting from the date the employee leave begins, and not a calendar year.

 

     Further, the amendments establish that the leave taken cannot be treated as a break in continuous service for the purpose of salary adjustments, sick leave, vacation, annual leave, seniority or paid time off.  

 

     The new law also clarifies that an employer is entitled to condition an employee's receipt of bone marrow or organ donation leave upon the employee taking up to five days of earned sick leave, vacation leave, or paid time off for bone marrow donation, and up to two weeks of earned sick leave, vacation, or paid time off for organ donation.  Previously the law did not specifically permit employers to require employees to use any paid time off they may have had coming to them.

 

      Notably, the organ and bone marrow donation 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 leave law and its new amendments.

 

How Much Time Off Must be Granted?

 

     Employees serving as organ donors must be granted up to 30 business days of paid leave within a one year period starting from the date the employee's leave begins. Employees donating bone marrow must be granted up to 5 business days of paid leave within a one-year period beginning the date the employee's leave begins.

 

Is the Time Off Paid or Unpaid?

 

     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 organ 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. However, the total leave cannot exceed 5 business days for bone marrow donation, and 30 business days for organ donation.

 

Must the Employer Maintain Health Benefits During Leave?

      

    Yes. The 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 as if the employee is actively at work during the leave period.

 

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, sick leave, vacation, PTO, annual leave, 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 the new leave provisions.

 

-         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

    

 

 


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