Virginia enacted a new law which requires eligible employers to provide up to 60 business days of unpaid leave for organ donation, and up to 30 business days of unpaid leave for bone-marrow donation in a 12-month period. See https://lis.virginia.gov/cgi-bin/legp604.exe?231+ful+CHAP0751+pdf. The new statute specifically states that the new form of leave does not run concurrently with the Family Medical Leave Act (“FMLA”), which means that an employee who takes organ or bone-marrow donation leave under the law could also take FMLA leave if he or she suffers a serious health condition.
The eligibility requirements for the new statutory leave are similar to those under the FMLA. To take leave, an employee must have been employed for at least a 12-month period and worked 1,250 hours during the previous 12 months. The new law applies only to private employers that employ 50 or more employees, though it does not apply the FMLA’s 50-employees-within-a-75- mile-radius rule.
Also similar to the FMLA, employers are required to maintain coverage of a health benefit plan for the duration of the organ or bone-marrow donation leave, and the employer must restore the employee to his or her position, or an equivalent position at the end of the leave (absent changes unrelated to an employee’s exercise of rights under the law).
An employee taking statutory organ/marrow donation leave must provide the employer with a physician’s written verification that the employee is an organ or bone-marrow donor and that a medical necessity exists for the organ or bone-marrow donation.
When an employee takes the statutory organ-donation leave, employers should be mindful of the possible interaction with the FMLA and the possibility that the employee may be entitled to take additional FMLA leave at the end of the donation leave. For example, if an employee took 60 days of leave to donate an organ, the employee could be entitled to an additional 12 weeks of FMLA leave if he suffers a serious health condition as a result of complications from the donation (in addition to the possibility of a reasonable accommodation, including possibly additional leave, under the Americans with Disabilities Act). Nothing under the new law, however, appears to prohibit an employer from requiring an employee to use available PTO or sick leave while taking organ or bone-marrow donation leave.
Consistent with many leave statutes, the new law prohibits an employer from retaliating against an employee for taking or requesting organ or bone-marrow donation leave. Violations of the law can result in a civil penalty of $1,000 for a first violation, $2,500 for subsequent violations, and $5,000 for successive violations. The statute becomes effective in Virginia on July 1, 2023.
Brendan F. Cassidy is an attorney at Praemia Law, PLLC. This article is for general informational purposes only and should not be relied upon or regarded as legal advice. Please contact Brendan Cassidy at brendan.cassidy@praemialaw.com or 703-399-3603 concerning particular facts and circumstances.
