GOVERNOR SIGNS SB 272 TO CLARIFY EMPLOYEE LEAVE RIGHTS TO DONATE AN ORGAN OR BONE MARROW
August 22, 2011
On August 1, 2011, Governor Brown signed into law Senate Bill (SB) 272 which clarified the terms of Labor Code section 1510 relating to employee leaves of absence to donate an organ or bone marrow. Labor Code section 1510 previously provided employees with a right to up to thirty (30) days of paid leave, in any one-year period, for the purpose of donating an organ to another person. It also provided paid leave of up to five (5) days for bone marrow donations.
Section 1510 allowed the paid leave to be taken intermittently and required written verification of the procedure. It also guaranteed continued health benefits for the donor during the paid leave and precluded characterizing the paid leave as a break in service for purposes of accruing salary adjustments, sick leave, vacation leave, annual leave, or seniority. Section 1510 also allowed an employer to require the exhaustion of a portion of the employee’s accrued but unused sick or vacation leave (in an amount up to two weeks for organ donors, and up to five days for bone marrow donors).
SB 272 expressly provides that it “does not constitute a change in, but is declaratory of, existing law.” The clarifications include:
1. That the days of paid leave for organ or bone marrow donations must be counted as “business days” and not “calendar days;”
2. That the one-year period is measured starting from the first day that such leave is taken, and that it consists of twelve (12) consecutive months;
3. That the intermittent use of organ or bone marrow donation leave should not, when aggregated per donation, exceed the time limits for organ donation leave (30 days) or bone marrow donation leave (5 days);
4. That the employee’s right to continue accruing benefits during the leave should include the accrual of “paid time off,” and that the employer may condition approval of organ or bone marrow donation leave upon the exhaustion of unused and accrued “paid time off” of any other type, in addition to sick and vacation leave; and
5. That the employee’s right to health benefits during such an organ or bone marrow leave is limited to the level of coverage (and employer contributions) that the employee received during “active service” prior to the leave.
Shareholder & Labor and Employment Practice Group Co-Chair
Walnut Creek Office
Senior Counsel & Labor and Employment Practice Group Co-Chair
Los Angeles Office
© 2011 Lozano Smith