Employers’ obligations to provide workers paid time off for organ and bone marrow donation under the state’s labor code were clarified under a bill California Gov. Jerry Brown (D) recently signed into law.
Currently, any employee who uses up his or her sick leave may take a leave of absence with pay for as many as 30 days for the purpose of organ donation and for as many as five days for bone marrow donation under California Labor Code §§1508-1513.
Under S.B. 272, amending California Labor Code §1510, employers must count the leave as business days, not calendar days, and the one-year period for measuring how much leave can be taken must start the day the employee’s leave begins, rather from the start of the calendar year. Further, leave cannot be treated as a break in service when calculating salary adjustments or accrual of vacation, sick time, paid time off or seniority.
The employer may require employees receiving bone marrow donations to take up to five days of accrued vacation, sick leave or paid time off, and up to two weeks of such time from employees receiving organ donations, before being obligated to pay the employee’s time off for receiving the donations, unless such policy would violate a collective bargaining agreement.
The employee must provide the employer with a written certification of his or her eligibility for, and the medical necessity of, the donation.
Employees must be maintained on the employer’s group health plan and pay normal premium contributions as if they are still at work. Employees must be returned to the same positions they left or an equivalent position.
Leave need not be taken all at once; the employee may participate in more than one medical procedure related to the donation but separated by time, as long as the total leave allotment does not exceed five business days for bone marrow donation or 30 business days for organ donation.
Organ and bone marrow donation leave is separate from and in addition to leave taken under the Family Medical Leave Act (FMLA) or the California Family Rights Act. Thus, an eligible employee could take paid time off for bone marrow or organ donation and still have a full 12 weeks of unpaid leave for a serious health condition related to the donation under the FMLA or CFRA.
Employers may not interfere with or retaliate against employees for taking such leave or for opposing an unlawful employment practice related to such leave. Employees have a private right of action to enforce these provisions.