Last September, California’s previous governor (the “Governator;” oops I mean Governor Schwarzenegger) signed into law a new statutory leave entitlement for certain employees who are going to donate their bone marrow or an organ to another.
The law was codified in Labor Code section 1510 and provided that an employer must grant a paid leave of absence to an employee who is an organ donor or a bone marrow donor. The leave of absence to an organ donor is up to 30 days in a one-year period. The leave of absence for a bone marrow donor is up to 5 days in a one-year period. The leave of absence for either donor is not a break in his or her continuous service for the purpose of his or her right to salary adjustments, sick leave, vacation, annual leave, or seniority. As a condition of an employee’s initial receipt of the leave of absence, an employer may require the employee to take a specified number of days of earned but unused sick or vacation leave, unless that would violate provisions of an applicable collective bargaining agreement.
California’s current Governor Brown signed Senate Bill 272 on August 1, 2011 in order to clarify certain provisions in Labor Code section 1510.
Those clarifications are:
1. The days of leave are business days rather than calendar days;
2. The one-year period is measured from the date the employee’s leave begins and consists of 12 consecutive months, and thus is not based on a calendar year;
3. The leave of absence is not a break in the employee’s continuous service for the purpose of his or her right to salary adjustments, sick leave, vacation, paid time off, annual leave, or seniority;
4. An employer may require, as a condition of an employee’s initial receipt of bone marrow or organ donation leave, that an employee take up to five days of earned but unused sick leave, vacation, or paid time off for bone marrow donation and up to two weeks of earned but unused sick leave, vacation, or paid time off for organ donation, unless doing so would violate the provisions of any applicable collective bargaining agreement.
Some important provisions from the original law for employers to remember are:
A. The law makes clear that organ and bone marrow donation leave is separate from an employee’s leave entitlement under the Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA). Thus, it does not run concurrently with FMLA or CFRA and an eligible employee could potentially be eligible for leave under Labor Code section 1510 and under FMLA and/or CFRA for a serious medical condition related to the bone marrow or organ donation.
B. The leave is paid leave. While Labor Code section 1510 permits an employer to require an eligible employee to use accrued and unused personal time off (PTO), vacation, or sick leave, it is important to remember that if the employee does not have any accrued and unused PTO, vacation, or sick leave, the employer must still grant an eligible employee paid leave under the statute.
C. Organ or bone marrow donor leave does not have to be taken all at once within the relevant 12 month period. Instead, an employee is entitled to the respective cumulative amount of leave (30 days for organ donation and 5 days for bone marrow donation) within the 12 month period that starts on their first day of such leave.
D. If the employee is covered by the employer’s group health insurance, the employer must maintain such coverage during the leave period pursuant to the same terms and conditions as when the employee is working.
E. Employers must reinstate employees returning from bone marrow or organ donation leave to the same position or a position with equivalent status, pay and benefits.
F. Employers must not retaliate against an employee for taking organ or bone marrow donation leave or for opposing an unlawful employment practice related to organ or bone marrow donation leave. If an employee believes they have been retaliated against for exercising their rights under Labor Code section 1510, he/she may sue to enforce his or her rights under the law.