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January 2011

California's First Statewide Paid Leave Mandate for Organ and Bone Marrow Donations

In a very significant development for California employers, the state legislature has enacted the Michelle Maykin Memorial Donation Protection Act, which is the first state law to require private employers to provide paid leave of absences to employees. (California Labor Code §§ 1508-1513.)

All private employers in California with 15 or more employees will now be required, effective January 1, 2011, to provide up to 30 days of paid leave per year for an organ donation in any one year period and up to 5 days of paid leave per year for a bone marrow donation. Leave provided for may be taken in one or more periods.
Bone marrow and organ donation leave does not run concurrently with leave taken pursuant to the federal Family and Medical Leave Act or the California Family Rights Act.
In order to avail themselves of this paid leave, employees are required to provide written verification that he or she is an organ or bone marrow donor and that there is a medical necessity for the donation of the organ or bone marrow. The absence of the employee during their leave is not considered a break in continuous service for purposes of salary adjustments, sick leave, vacation, annual leave or seniority. In addition, employers are required to maintain and pay for coverage under an existing group health plan for the full duration of the leave.

An employer may, however, require as a condition of an employee's initial receipt of bone marrow or organ donation leave, that the employee take up to 5 days of earned but unused sick or vacation leave for bone marrow donation and up to 2 weeks of earned but unused sick or vacation leave for organ donation, unless doing so would violate the provisions of any applicable collective bargaining agreement.

Employers are required to restore employees returning from organ or bone marrow leave to the same or equivalent position that was held by the employee when the leave began. And, it goes without saying that employers are prohibited from interfering with employees' rights under this new paid leave law or retaliating against employees for taking such leaves. In the event employers violate the rights of employees under the organ and bone marrow donation leave law, employees are expressly given the right to file a lawsuit to recover both damages and injunctive relief.

Employment Law

Mark A. Saxon

Employment Law