Organ and Bone Marrow Donor Leave

California employers with 15 or more employees must provide employees who choose to donate an organ or bone marrow with leave:

• Organ donors must be provided a paid leave of absence of up to 30 business days in any one-year period, and an additional unpaid leave of absence, up to 30 business days of unpaid leave in any one-year period.
• Bone marrow donors must be provided a paid leave of absence up to five business days in any one-year period, calculated from the date the employee’s leave begins.1

For purposes of these leaves, a “one-year period” is 12 consecutive months from the date the employee begins their leave; not one calendar year.

The employee must take the leave to donate an organ or bone marrow to another person, and must provide you with written verification of the need for donation leave. The verification must state that the employee is a bone marrow or organ donor and that the donation is medically necessary.

“Employee” means a person who may be permitted, required or directed by an employer for wages or pay to engage in any employment and who has been employed by the employer for at least a 90-day period immediately preceding the beginning of leave, if otherwise eligible for leave.2

For the purposes of salary adjustments, sick leave, vacation, PTO, annual leave or seniority, the donation leave is not a break in service. You must treat an employee who takes donation leave as though they had remained at work.

The law states that employers can require an employee who requests leave for bone marrow donation to take up to five days of accrued paid sick, PTO or vacation time. You can require an employee who requests leave for organ donation to take up to two weeks of accrued paid sick, PTO or vacation time. However, employers shouldn't require employees to use their mandatory paid sick leave provided under the California Health Workplace Healthy Families Act.

California’s mandatory paid sick leave law is silent as to how mandatory paid sick leave is treated in relation to organ and bone marrow leave. Though Labor Code section 1510 allows employers to require the use of accrued sick leave during organ and bone marrow leave, employers shouldn't require the use of paid sick leave accrued under the California Healthy Workplaces Healthy Families Act as the California Labor Commissioner has not provided guidance on whether employers can require the use of that leave.

Employers should consult with legal counsel before requiring employees to use any accrued paid time off for organ and bone marrow leave to ensure their policy is in compliance with the law. For more information, see Paid Sick Leave.

After the use of any accrued employer provided leave time, or if the employee does not have any accrued time, the employer must provide paid leave up to the time limits provided.

During organ or bone marrow leave, you are required to maintain and pay for coverage under a group health plan for the full duration of the leave in the same manner that the coverage would have been maintained if the employee had been actively at work during the leave period.

Organ and bone marrow donation leave cannot be taken concurrently with the California Family Rights Act (CFRA). The Labor Code also states that organ and bone marrow donation leave cannot be taken concurrently with leave under the FMLA. Consult legal counsel if your employee is eligible for FMLA.

An employee can take organ and bone marrow donation leave in one or more periods of time.

Rights of Employees Related to Organ and Bone Marrow Donation Leave

You must reinstate an employee returning from organ and bone marrow donation leave to the position they held when the leave began or to a position with equivalent seniority, benefits, pay and other terms. You can refuse to reinstate an employee if the reason is unrelated to the exercise of rights under the donor leave.

You cannot terminate, fine, suspend, expel, discipline or discriminate against an employee who takes organ and bone marrow donation leave or who opposes illegal practices related to organ and bone marrow donation leave. Employees can bring a civil action in superior court to enforce the organ and bone marrow donation leave.

Employees who need to take time off to donate an organ may also be protected under state and federal laws against disability discrimination. A California court ruled that an employee who requested a leave of absence to donate a kidney to his sister could pursue a claim that he was discriminated against based on his association with a disabled person. The employee was not able to seek protection under the state organ donor leave law because it was not yet in effect at the time he sought leave.3

For more information on this protection against disability discrimination, please see Disability Association Claim.

Employees cannot lose benefits that accrued before the date on which the leave began.

• The law does not require you to maintain a written policy for organ and bone marrow donation leave. However, it is recommended that you include a policy describing this mandatory leave because inclusion demonstrates your company's commitment to compliance with California law and describes the parameters and requirements related to such leave, which is particularly important if you require an employee who requests organ and bone marrow donation leave to use employer-provided paid sick, PTO or vacation leave.

• CalChamber’s Employee Handbook Creator® can help you easily create an employee handbook that contains this policy.

1. Lab. Code secs. 1508 - 1513