Compliance Bulletin

New Employee Right To Paid Leave: Organ Donation
October 25, 2010

SB 1304 was enacted in California this legislative session that extends a state employee benefit to the private sector.

 Under current law [1] employees of the state are permitted to take up to 30 days’ leave of absence with pay to donate an organ “to another person” or up to 5 days’ leave to donate bone marrow “to another person.” SB 1304, which adds Sections 1508 et seq. to the Labor Code, adopts the same rule for California employers with 15 or more employees. The leave in either instance may be taken once in any “one-year” period, but may be taken in one or more periods.

The statute does not clarify whether the one year period must be a calendar year, rolling 12-month period, the employer’s fiscal year, or other one year period. In the absence of legislative history suggesting a preference in any particular direction, it would appear that an employer has the flexibility to choose how the one year period is determined.

The requesting employee is required to provide written verification to the employer of the intended donation and that “there is a medical necessity for the donation.” This language, together with the “to another person” provisions, suggest that leave must be granted only if the employee’s purpose is to make a specific donation and not, for example, a donation to a bone marrow bank. It could be argued that any donation, including a non-specific one, is inevitably to be used by “another person” for a “medical necessity.” Nevertheless, the nature of this new privilege is not one that is likely to be abused by employees.

Employers are required to restore an employee returning from such leave to the same or equivalent position held when the leave began in terms of seniority, benefits, pay, and other terms and conditions of employment. An employer may decline to restore an employee as required for reasons unrelated to the employee’s exercise of these rights. Time taken during such leave may not be treated as a break in continuous service for purposes of salary adjustments, or accrual of sick leave, vacation time, annual leave, or seniority. Any group health benefits must be maintained during the leave. However, an employer may require the employee to take up to five days of earned but unused sick or vacation leave for a bone marrow donation and up to two weeks of earned but unused sick or vacation leave for an organ donation. The clear indication is that paid leave must be granted in the amounts required, subject to these allowances, whether or not the employee has accrued the sick and vacation time to take such leave.

The statute does not specifically address the situation where the employee is unable to return to work within the allotted time periods. An open issue is whether the employer is required to restore employment status and maintain continuity of service during any additional time not specifically allowed. It is clear that the employer is not required to furnish additional paid leave. The continuity of service requirement applies to “Any period of time during which an employee is required to be absent from his or her position by reason of being an organ or bone marrow donor.” [Emphasis added]. This suggests that the operative period is the time actually taken, not the time legally allowed.

By contrast, the restoration of position requirement applies “upon expiration of a leave authorized by this part.” [Emphasis added]. This requirement is more closely linked to the leave that is legally authorized rather than actually taken. Nevertheless, prudence may dictate adoption of the more employee-friendly approach.

Leave taken under this statute may not be taken concurrently with leave taken pursuant to the federal Family and Medical Leave Act of 1993 or the California Family Rights Act. Thus, an employer may not charge the employee with the permitted leaves available under those acts for taking leave under SB 1304. Also, an employer may not discriminate against an employee for exercising his or her rights under SB 1304 or for opposing a practice made unlawful by it. Violation could subject an employer to a private right of action and court injunction.

Jason Lane is CBA’s lead lobbyist on this bill. The effective date of SB 1304 is January 1, 2011.

  1. See Government Code Section 19991.11.

The information contained in this CBA Regulatory Compliance Bulletin is not intended to constitute, and should not be received as, legal advice. Please consult with your counsel for more detailed information applicable to your institution.

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