Beginning January 1, 2011, California employers will be obligated to provide 30 days of paid leave to an employee who is donating an organ, and five days of paid leave to an employee who is donating bone marrow, pursuant to a new law signed by Governor Schwarzenegger (SB 1304). Employers with at least 15 employees are required to comply with the new law, which also requires employers to restore the employee to the position they held prior to taking the leave. The new law allows employers to require employees to use accrued sick or paid vacation (up to two weeks for organ donors and up to five days for bone marrow donors), provided that it does not conflict with the terms of a collective bargaining agreement. Leave taken under the new law cannot run concurrently with leave taken under the California Family Rights Act (CFRA).
The new law also includes two provisions, which most likely extend beyond the authority of the California legislature to implement. First, the law states that employers are required to maintain and pay for coverage under a group health plan for the duration of the leave. Unlike the federal government, which can regulate group health plans under the Employee Retirement Income Security Act (ERISA), state legislatures do not have the authority to dictate how and when private employers administer group health plans. So it’s unknown whether that provision would be upheld if it were challenged. Second, the law states that leave taken under the new law cannot run concurrently with the federal Family and Medical Leave Act (FMLA). The State of California does not have the authority to override a federal law such as the FMLA. Thus, if an employee’s leave to donate bone marrow or an organ qualifies as a serious health condition under the FMLA, you should be able to count the leave under the FMLA regardless of what this new law says. However, you still wouldn’t be able to count the leave against an employee’s CFRA leave entitlement.
Tips: If an employee wants to take leave under this new law, contact your Vigilant staff representative. We can walk you through the provisions of the new law, as well as discuss the risks involved with violating the two provisions that are most likely invalid.