Mandatory Paid Leave for Organ and Bone Marrow Donors

For some time now, state employees have been given paid time off for organ and bone marrow donations by law.  Beginning in 2011, this is now mandatory for private employees as well.  Effective immediately, employers with 15 or more employees must provide paid leave to employees for organ donation and bone marrow donation whether or not such employees have used up available sick leaves.

Here some of the key elements of the new law that employers need to know.

• The employee’s group health coverage must be maintained during the leave;
• The leave period—30 days for organ donation and five days for bone marrow donation—is the maximum allowed per year.  The law does not specify whether or not the year must be calculated as a calendar year or rolling year basis;
• Such leaves of absence are not required to be done at one time but can be taken intermittently;
• The employer has the right to ask for written documentation from a doctor stating the employee’s involvement as well as the procedure’s medical necessity;
• The employer may not interfere, discriminate or retaliate against an employee’s leave rights;
• Upon returning to work from such a leave of absence, the employee must be restored to the same position or an equivalent position i.e. equivalent salary, benefits, etc.;
• The employee must continue to accrue sick leave, vacation, seniority during the leave period and any other rightful benefits of the employee;
• The employer can require that the employee use accrued sick or vacation days if available at the time of the employee’s leave.  The employer may credit all five days for the bone marrow donation leave and up to two weeks for organ donor leave;
• Employees may file a lawsuit against their employer, seeking monetary and injunctive relief, for any violation of this statute, published as sections 1508-1513 of the California Labor Code.

To prevent any mishandling of these new leave rights, they should be added to your employee handbook as soon as possible.  If you have questions about employees seeking leave for bone marrow or organ donation, consult a labor or employment attorney.