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Apr 25, 201602:32 PMOpen Mic

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What employers should know about new bone marrow, organ donation leave law

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On April 1, 2016, the governor signed a new law providing qualifying employees with the right to take leave from work for purposes of serving as a bone marrow or organ donor. The law takes effect on July 1, 2016.

Like the Wisconsin FMLA, the law applies to employers in Wisconsin who employ at least 50 individuals on a “permanent basis,” which includes private sector employers, as well as school districts and municipalities that employ 50 or more employees.

Under the new law, employees who have worked for the employer for 52 consecutive weeks and worked at least 1,000 hours in the last 52 weeks are eligible for leave to serve as a bone marrow or organ donor. The employee may take up to six weeks of leave in a 12-month period for the purpose of serving as a bone marrow or organ donor, and may only take leave for the period necessary for the employee to undergo the donation procedure and to recover from the procedure. The right to take donor leave is in addition to an employee’s right to take leave under the FMLA laws. The donor leave is unpaid, but the employee may substitute paid or unpaid leave of any other type provided by the employer.

An employee who wishes to request donor leave must make a reasonable effort to schedule the bone marrow or organ donation so as to not unduly disrupt the employer’s operations, subject to the approval of the donee’s health care provider, and must give the employer advance notice of the need for the leave in a reasonable and practicable manner.

As a condition of approving the leave, the employer may require medical certification that states the following: (1) the donee has a serious health condition that necessitates a bone marrow or organ transplant; (2) the employee is eligible and has agreed to be a bone marrow or organ donor for the donee; and (3) the amount of time expected to be necessary for the employee to recover from the donation procedure.

Like under the Wisconsin FMLA, an employee who takes donor leave must be returned to his or her former position, or if that position is not vacant, the employee must be returned to a position with equivalent pay, benefits, working shift, hours, and other terms and conditions of employment. If the employee wishes to return to work prior to the end of the scheduled leave, the employer must return the employee to work within a reasonable time.

Employees who take donor leave are not entitled to any right, employment benefit, or position to which they would not otherwise have been entitled had leave not been taken. Employees are also not entitled to the accrual of any seniority or employment benefit during a donor leave. On the other hand, employers may not reduce or deny any benefit that accrued prior to the employee’s leave.

Employers must maintain an employee’s group health insurance benefits during the approved leave if the employee had coverage under the plan immediately before the leave.

The employer and employee may mutually agree that, during a period of recovery from a donation procedure, the employee will work in an alternative employment position. Any period of time that the employee works in alternative employment does not reduce the employee’s leave entitlement.


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