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New clarifications to California organ/bone marrow donor leave law enacted

August 17, 2011

California employers are (hopefully) already well aware of California’s new-ish leave law requiring private employers to provide leaves of absence to employees who donate organs or bone marrow.  State employees had this benefit for several years before the legislature offered it to private employees as well.  The law, codified at Labor Code sections 1508-1513, was enacted at the end of 2010 and became effective this January.  It was also recently clarified in a bill signed by Governor Moonbeam II Brown earlier this month.

By way of quick review, here are the highlights (including the recent clarifications):

  • How long is it?  The maximum leave periods are 5 days for bone marrow donations, 30 days for organ donations, per year.  Those are business days, not calendar days, so organ donors get six weeks if they want.  The “per year” is a rolling twelve month period running from the date the employee’s last leave began.  This leave can be taken intermittently.
  • Paid or unpaid?  (Pause while laughter subsides.)  Come on, it’s California.  Of course it’s paid.  Employers, make sure you maintain those benefits during the leave, too.  And keep the seniority, vacation, and sick leave coming — this leave doesn’t count as a break in service.
  • Is this just for the big guys?  Nope.  Companies with 15 employees or more must provide this leave.
  • OK, but at least FMLA and CFRA run concurrently, right?  Wrong.  Donor leaves is in addition to the 12 weeks provided for qualifying employees under FMLA and its state analog, CFRA.
  • Can employers charge an employee’s PTO or vacation?  Yes for the bone marrow donors.  Only sort of for the organ donors, who can only be charged two weeks’ worth of vacation.  The employee’s consent is not required.
  • Can employers require medical certification?  Again, sort of.  Employers can require medical confirmation that the employee is donating bone marrow or an organ, and that the donation is necessary to the recipient.  But there’s no requirement that the employee donor herself have a demonstrable medical need for the leave.
  • Etc., etc.  Employers are prohibited from interfering with an employee’s right to take donor leave, or retaliating or discriminating against employees who do so.  Employees can sue for violations of the donor leave law.  Monetary and injunctive relief are available, as are (of course) attorneys fees.

California employers, if this leave isn’t in your handbooks already, it needs to get there — and in the consciousness of supervisors and HR departments — pretty quick.  And given the potentially complex interplay between this leave, ADA, FMLA, and California’s similar state laws, a quick call to counsel with any questions would be prudent.  At least until the kinks get worked out of this new leave entitlement.

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