Bone Marrow & Organ Donation Leaves

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Bone Marrow and Organ Donation Leaves

California employers with 15 or more employees must provide employees who choose to donate an organ or bone marrow with paid leave:

Organ donors must be provided a leave of absence of up to 30 business days in any one-year period.
Bone marrow donors must be provided a leave of absence up to five business days in any one-year period, calculated from the date the employee’s leave begins.

For purposes of these leaves, a “one-year period” is 12 consecutive months from the date the employee begins his/her leave; not one calendar year.
The employee must take the leave to donate an organ or bone marrow to another person. The employee must provide you with written verification of the need for donation leave. The verification must state that the employee is a bone marrow or organ donor and that the donation is medically necessary.
“Employee” means a person who may be permitted, required or directed by an employer for wages or pay to engage in any employment and who has been employed by the employer for at least a 90-day period immediately preceding the beginning of leave, if otherwise eligible for leave.
For the purposes of salary adjustments, sick leave, vacation, PTO, annual leave or seniority, the donation leave is not a break in service. You must treat an employee who takes donation leave as though he/she had remained at work.
You can require an employee who requests leave for bone marrow donation to take up to five days of accrued paid sick, PTO or vacation time. You can require an employee who requests leave for organ donation to take up to two weeks of accrued paid sick, PTO or vacation time.
During organ or bone marrow leave, you are required to maintain and pay for coverage under a group health plan for the full duration of the leave in the same manner that the coverage would have been maintained if the employee had been actively at work during the leave period.
Organ and bone marrow donation leave cannot be taken concurrently with the California Family Rights Act (CFRA). The Labor Code also states that organ and bone marrow donation leave cannot be taken concurrently with leave under the FMLA. Consult legal counsel if your employee is eligible for FMLA.
An employee can take organ and bone marrow donation leave in one or more periods of time.

Rights of Employees Related to Organ and Bone Marrow Donation Leave

You must reinstate an employee returning from organ and bone marrow donation leave to the position he/she held when the leave began or to a position with equivalent seniority, benefits, pay and other terms. You can refuse to reinstate an employee if the reason is unrelated to the exercise of rights under the donor leave.
You cannot terminate, fine, suspend, expel, discipline or discriminate against an employee who takes organ and bone marrow donation leave or who opposes illegal practices related to organ and bone marrow donation leave. Employees can bring a civil action in superior court to enforce the organ and bone marrow donation leave.
Employees who need to take time off to donate an organ may also be protected under state and federal laws against disability discrimination. A California court ruled that an employee who requested a leave of absence to donate a kidney to his sister can pursue a claim that he was discriminated against based on his association with a disabled person. The employee was not able to seek protection under a state donor protection law because it was not in effect at the time he sought leave.
Employees cannot lose benefits that accrued before the date on which the leave began.
There are no implementing regulations for this law, at this time.
You need not maintain a written policy for organ and bone marrow donation leave. However, if you require an employee who requests organ and bone marrow donation leave to use paid sick, PTO or vacation leave, include this information in your employee handbook.