Spotlight on the New Medical Donor Leave LawFirst Quarter 2011 – Newsletters California Update Employment Law
Effective January 1, 2011, California private employers with 15 or more employees must provide paid leave for any employee donating an organ or bone marrow. An employee 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 codified as California Labor Code sections 1508-1513. The leave is in addition to rights to a leave of absence under the Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA). Thus, this leave does not run concurrently with FMLA or CFRA. The requirements under this law, however, resemble the requirements under the FMLA:
- Employers must maintain the employee’s group health coverage during the leave.
- When the leave ends, employers must restore the employee to the same or comparable position.
- The leave period is a maximum per year (although the law does not specify whether the year should/must be calculated on a calendar year or rolling year basis or whether either method is appropriate).
- 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, employees continue accruing sick leave, vacation and seniority while on a medical donation leave).
- Unless otherwise provided by a collective bargaining agreement, employers can require the employee to use any unused vacation, sick leave or paid time off (PTO) against the five-day bone marrow donation leave, and up to two weeks of unused vacation, sick leave or PTO for any organ donor leave.
- Leave under this provision can be taken intermittently.
- Employers 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.
- Employers are prohibited from interfering with an employee’s right to leave and prohibited from discriminating or retaliating against an employee because he or she utilized this leave.
- The statute allows employees to file suit in superior court to seek monetary and injunctive relief for any violation of this new law.
As a result of this new law, employers should add a medical donor leave policy to employee handbooks, develop medical certification forms specifically tailored for medical donor leave and use this as an opportunity to train supervisors and managers on all leave requirements under California law.