by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Gail Cohen, Esq. - Assistant General Counsel,
June 24, 2016
Wisconsin Supports Its Donor Employees
Next week Wisconsin joins the growing list of states with laws mandating leave of absence for employees to donate organs, bone marrow, blood, and other types of human tissue.
The state’s Bone Marrow and Organ Donation Leave law goes into effect on July 1, 2016. Here is a summary of the law’s significant provisions.
(Also: see our handy state donor leaves chart below.)
New Wisconsin Donor Leave Law: Significant Provisions
| Covered Employers | 50 or more permanent employees |
| Eligible Employees | • More than 52 consecutive weeks of service and • At least 1,000 hours worked in the previous 52 weeks |
| Leave Reasons | To serve as a bone marrow or organ donor |
| Leave Entitlement | Up to 6 weeks in a 12-month period |
| Leave Year Calculation | Measured forward from first date of donor leave |
| Paid/Unpaid | Donor leave is unpaid; but employee may choose to substitute available paid leave |
| Interaction with Wisconsin Family /Medical Leave Act | Not specified but appears to be a separate leave right in addition to leave rights under the WI FMLA.
Analysis: This is a new leave law, not just an additional leave reason under the WI FMLA. This suggests legislative intent for this leave to be independent of, and in addition to, any leave right the employee may have under the WFLA. Our discussion with a representative of the Wisconsin Department of Workforce Development (DWD) supports this interpretation. |
| Employee Notice | Advance notice in a “reasonable and practicable manner”
• No requirement that notice be in writing |
| Scheduling | Employee must make a reasonable effort to schedule procedure so that it does not unduly disrupt employer’s operations
• But scheduling is subject to approval of donee’s provider |
| Certification | Employer may require a certification from donee’s or employee’s health care provider:
• That the donee has a serious health condition that necessitates a bone marrow or organ transplant; • That the employee is eligible for and has agreed to serve as a bone marrow or organ donor for the donee; and • The amount of expected leave time for the procedure and employee’s recovery |
| Restoration Rights Upon Return from Leave | Restoration to:
• Employee’s previous position if vacant; or • A position equivalent in terms of compensation, benefits, shifts, hours of employment and other terms and conditions of employment |
| Group Health Insurance Coverage | Employer required to maintain coverage during leave under the same conditions that applied before leave |
| Nondiscrimination | Employees who request, or take, WI bone marrow and organ donation leave are protected from discharge and other adverse employment actions based on their exercise of leave rights |
| Discrimination Complaints | Must be filed with the DWD within 30 days after the violation occurs |
| Civil Right of Action | Private right of action within 60 days after completion of the administrative process before the DWD, but no later than 12 months after the violation occurred |
| Employer posting requirements | Employers must post in one or more conspicuous places where employee notices are customarily posted:
• All employers: a notice, to be created by the DWD, of the employee’s rights • Employers with 25 or more employees: a copy of the employer’s policy regarding donor leave Note: These posting requirements seem at odds with the fact that the law only applies to employers with 50 or more permanent employees. |
Wisconsin joins a number of other states with bone marrow and organ donation leave laws. Here is a snapshot of the states with such laws for private employers.
| State | Employee Eligibility | Covered Employers | Leave Reasons | Length /Frequency of Leave | Paid/ Unpaid |
| Arkansas
Ark. Code Annot. §11-3-205, et. seq
| All employees | All employers | Bone marrow or organ donation | Up to 90 days | Unpaid (but state tax credit available for employers who provide paid leave) |
| California
Cal. Lab. Code § 1508 et seq. | 90 days of service | 15 or more employees | Bone marrow or organ donation | • Organ donation: up to 30 business days • Bone marrow donation: up to 5 business days • In a 12-month period. | Paid, but employer can require employees to substitute up to 2 weeks of paid leave benefits (employer pays remainder). |
| Connecticut
C.G.S. §31-51ll(a)(2)(E) | • 12 months of service • 1000 hours of service during that 12 month period | 75 or more employees | Organ or bone marrow donation | 16 workweeks in a 24-month period • Shared with other leave reasons under CT FMLA | Unpaid
• Employer may require, or employee may elect, to substitute accrued paid leave benefits |
| Hawaii
H.S.A. §398a-3 | 20 or more hours per week | 20 or more employees | Donation of bone marrow, peripheral stem cells, or organ | • Organ donation: up to 30 days • Bone marrow or peripheral stem cells: up to 7 days | Unpaid
• Employers can require employees to use up to 2 weeks (organ donation) or 3 days (other donation) of sick or other time off during donor leave |
| Illinois
| 6 months of employment | 51 or more employees | Blood donation | 1 hour every 56 days | Paid |
| Louisiana Louisiana Rev. Stats. §40: 1299.124
| 20 or more hours per week
| 20 or more employees at one location | Bone marrow donation | Up to 40 hours | Paid |
| Maine
26 M.R.S.A. §§843, 844 | 12 consecutive months of employment | 15 or more employees at one location | Organ donation | Up to 10 weeks every 2 years • Shared with other leave reasons under ME FMLR | Unpaid |
| Minnesota
M.S.A. §181.945 | 20 or more hours per week | 20 or more employees at one location | Bone marrow donation | Up to 40 hours | Paid |
| New York
NY Labor Law §202-a
| 20 or more hours per week | 20 or more employees at one location | Blood or bone marrow donation | • Blood donation: 3 hours • Bone marrow donation: 24 hours | Unpaid |
| Oregon
Ore. Rev. Stat. §659A.312
| 20 or more hours per week | All | Bone marrow donation | Amount of paid time off employee has accrued or 40 hours, whichever is less | Employee required to use his or her accrued paid leave |
| South Carolina
SC §44-43-80
| 20 or more hours per week | 20 or more employees at one location | Bone marrow donation | Up to 40 hours | Paid |
| Wisconsin
Wisc. Stat. §103.11 | • More than 52 consecutive weeks of service and • At least 1,000 hours worked in the previous 52 weeks | 50 or more permanent employees | Bone marrow or organ donation | Up to 6 weeks in a 12-month period | Unpaid • Employee may choose to substitute available paid leave |
And finally, Nebraska – in an abundance of employee support – “encourages” employers to grant paid leaves of absence to employees who seek to undergo a medical procedure to donate bone marrow. Neb. Rev. Stat. §71-4820.
MATRIX CAN HELP! Matrix Absence Management will be ready to manage the new Wisconsin donor leave law effective July 1. Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and will post periodic updates in this blog. In addition, our clients receive Matrix’s monthly Legislative Update, which pulls together developments in the world of leave laws and accommodations in a concise and timely format. With the passage of each new leave law Matrix assesses employer needs and industry demands to determine whether administration of the new law should be added to Matrix’s suite of services.
Contact Matrix at 1-800-866-2301 to learn more about our services for complete management of leaves of absence, disability plans (state and private), and ADA accommodations, including leave.