Effective this month California private employers with 15 or more employees are required to provide paid leave for any employee who is donating an organ or bone marrow. The language of the statute does not require that the employee be disabled from working in order to be eligible for the leave. Employees may take up to five days of paid leave for bone marrow donation, and up to 30 days of paid leave for organ donation. The statute is far from comprehensive but provides some guidance on the terms and conditions that employers must comply with in granting the leave. They include:
(a) The employer must maintain the employee’s group health coverage during the leave.
(b) When the leave ends, the employer must restore the employee to the same position or an equivalent (meaning equivalent salary/benefits/promotional opportunities etc.) position.
(c) The leave period is a maximum per year, although the law does not specify whether or not the year should/must be calculated on a calendar year or rolling year basis or whether either method is appropriate.
(d) The leave is in addition to FMLA and CFRA leave and is not to be counted against FMLA or CFRA leave banks.
(e) The leave cannot be considered as a break in service for purposes of the employee’s right to salary adjustments, sick leave, vacation, annual leave, or seniority. Thus, the employee must continue to accrue sick leave, vacation and seniority during the leave period.
(f) If, at the time the employee takes the leave, the employee had any accrued but unused vacation, sick leave or PTO, the employer can require that this accrued leave be credited against the 5-day bone marrow transplant leave. The employer may also credit a maximum of two weeks of accrued, unused vacation, sick leave or PTO for any organ donor leave. The employer can do this unilaterally if there is accrued, unused time in the employee’s leave banks.
(g) Leave under this provision can be taken intermittently. No specific limits on intermittent leave (e.g. minimum increments) are specified in the statute.
(h) The employer can require the employee to provide written documentation from a medical provider that the employee is donating an organ or bone marrow and that there is a medical necessity for the donation in order to verify the employee’s right to the leave.
(i) The employer is prohibited from discriminating or retaliating against an employee because he or she utilized this leave. The employer is prohibited from interfering with an employee’s leave rights.
(j) The statute provides the employee with a right to file suit in superior court to seek monetary and injunctive relief for any violation of the leave statute. The statute will be published as sections 1508-1513 of the California Labor Code.
Covered employers should consider publishing these leave rights in their employee handbooks.