CORRECTED LAW ALERT: New Organ and Bone Marrow Donation Leave Law
October 19 2010
On September 30, 2010, Governor Schwarzenegger signed into law the “Michelle Maykin Memorial Donation Protection Act” which adds another statutory leave entitlement to the California Labor Code.
The new organ and bone marrow donation leave law provides for the following:
- The law applies to employers (persons, partnerships, corporations, associations, or other business entities) that employ 15 or more employees.
- Employees who are donating an organ to another person may take a leave of absence not exceeding 30 days (and which may be taken in one or more periods) in any one-year. Employees who are donating their bone marrow to another person may take a leave of absence not exceeding 5 days (and which may be taken in one or more periods) in any one year.
- In order to receive a leave of absence under the new law, an employee must provide a written verification to the employer that shows that the employee is an organ or bone marrow donor and that there is a medical necessity for the donation. Note: the statute does not define “written verification” or provide any explanation of what will satisfy this requirement. However, it is reasonable to assume that a medical certification from a health care provider containing the necessary information will be sufficient.
- Employers may require that as a condition of an employee’s initial receipt of bone marrow or organ donation leave, that an employee use up to 5 days of earned but unused sick or vacation leave (if any) for bone marrow donation, and up to 2 weeks of earned but unused sick or vacation leave (if any) for organ donation. However, the leave is paid leave and thus, the employer has an obligation to pay the employee for all time off while on leave under this new law
- The leave taken for organ or bone marrow donation does not run concurrently with any leave taken under FMLA/CFRA.
- The leave taken for organ or bone marrow donation does not cause a break in the employee’s continuous service for purposes of seniority or benefit entitlements like sick leave and vacation accrual.
- An employee returning from organ or bone marrow donation leave shall be restored to the position he or she held when the leave began or to an equivalent position.
- Employers shall not interfere with, restrain, or deny the exercise or the attempt to exercise the right of an employee to take organ or bone marrow donation leave, and may not discharge, fine, suspend, expel, discipline, or in any other way discriminate against an employee who exercises their right to such leave or opposes a practice made unlawful under the new law.
- An employee has a private right of action in superior court to enforce the new law and a court has the jurisdiction to enjoin an employer from any act or practice that violates the new law.
What Should Affected Employers Do?
- Update your leave policies (handbook) to include this new statutory leave and distribute a memo to employees advising them of the new organ and bone marrow donation leave.
- Train your managers and supervisors regarding this new statutory leave.
- Properly and consistently administer this statutory leave entitlement like all other statutory leave entitlements.
Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s employment law blog at www.thelelawblog.com.