As of January 1, 2011, employers with 15 or more employees working in California must provide up to 30 days of paid leave for employees making organ donations, and up to five days of paid leave for employees making bone marrow donations. Employers may require employees taking organ donation leave to use up to 15 days of accrued paid time off and may require employees taking bone marrow donation leave to use accrued paid time off for the entire leave. During the paid leave, employees are entitled to receive group health coverage and must continue to accrue paid time off and other benefits as if they had continued working. Leave for organ and bone marrow donation does not run concurrently with leave under the Family and Medical Leave Act or the California Family Rights Act.
Employers are prohibited from interfering with an employee’s right to take such a leave and may not retaliate against employees for taking a donor leave. Upon return to work at the conclusion of a donor leave, employees must be restored to the same or an equivalent position.
To qualify for leave to donate an organ or bone marrow, employers may require employees to provide written verification that the employee is an organ or bone marrow donor and that there is medical necessity for the donation. This suggests that the law does not apply to employees who wish to donate organs or bone marrow without an intended recipient in mind.
Employers must make sure that employees who have exhausted all of their paid time off are paid for the entirety of the organ or bone marrow donation leave. Furthermore, regardless of how much paid time off an employee has accrued, an employer may not require the employee to use more than 15 days of accrued paid time off for organ donation. For example, an employer may require an employee who has 12 days of accrued paid time off and who takes 30 days off for organ donation leave to exhaust the 12 days, but the employer must pay the employee for the remaining 18 days. If an employee has exhausted all of his or her time off, the employer must pay for the entire duration of the leave.
Paid time off for organ and blood marrow donation is only the second paid leave enacted by the California state legislature. The first such paid leave law requires California employers to provide up to two hours of paid time off to employees who do not have sufficient time outside working hours to vote. Note, however, that the San Francisco Board of Supervisors did enact an ordinance requiring paid sick leave. That ordinance requires employers to provide one hour of paid sick leave for each 30 hours worked by an employee.
Significance for Employers
Employers should amend their employee handbooks and policies to add the new leave. Also, employers are reminded to include the safe harbor language contained in the Equal Employment Opportunity Commission regulations on the Genetic Information Nondiscrimination Act (“GINA”) when requiring medical certifications in connection with organ and bone marrow leave. For more information about GINA and for the safe harbor language, please see our December 6, 2010, alert titled “New EEOC Regulations Clarify Employer Obligations Regarding Genetic Information.”
John Adkins, firstname.lastname@example.org, 617.951.8551
Jenny Cooper, email@example.com, 617.951.8473
Louis Rodriques, Co-chair, Labor and Employment Group, firstname.lastname@example.org, 617.951.8340
This article was originally published by Bingham McCutchen LLP.