Wisconsin Now Grants Leave to Employees Donating Bone Marrow or Organs

June 17, 2016

According to Wisconsin Governor Scott Walker, there are currently over 120,000 Americans waiting for a life-saving organ transplant, and of those 2,300 live in Wisconsin. Organ and bone marrow donors may not be fully protected under federal family and medical leave law if they take leave as a result of such donation (except federal employees have protection). About a dozen states have donor protection for private employees, and even more states have protection for state employees. Wisconsin recently enacted a new law that protects Wisconsin employees who choose to save a life through organ donation. The law applies to private employers with 50 or more permanent employees, and governmental employers. The law takes effect on July 1, 2016.

Background

Ian Band is an immigration attorney at Hunton & Williams in Washington, DC. In 1991, Ian donated bone marrow to an unrelated donor. The donee had leukemia, discovered during a pre-op physical for nasal surgery. He passed away in May 2013, just shy of 22 years after the bone marrow transplant. He got to see his toddler grow up, graduate from college, get a great job, fall in love and get engaged. He never complained. Once, when Ian asked the donee how he was doing, he said “I get to kiss my wife every day and play catch with my son…doesn’t get any better than that.”  A year after the donation, he wrote Ian a letter, saying:

“My parents were responsible for my first birthday in 1958. You are responsible for the second one of that October day. I have had a year to think of what to say to you and I’ve tried to find the best way to thank you for what you have done for me but there isn’t a language on this earth that possesses the correct adjectives to express my gratitude for your gift. You have given my wife, her husband and life companion back to her; my four-year-old son, a father; and to me, a reason to someday travel to the east coast to shake hands with you and personally thank you. I know personally what you went through for this procedure, I’ve had the pleasure of having a bone marrow aspiration done three times; I know it isn’t fun. You didn’t save my life, you gave me a completely new one.”

This is just one powerful story of thousands. There are programs available now where a relative or friend can agree to donate a kidney, and then be part of a kidney exchange program, where another donor provides a kidney that matches the relative or friend needing the kidney donation.

The Law

The new law allows employees to take up to six weeks of leave to donate organs and bone marrow. This law provides job protections to organ donors of heart, lung, liver, pancreas, kidney, intestine, or other organs that require the continuous circulation of blood to remain useful for purposes of transplantation, and bone marrow. No more than six weeks of leave in a 12−month period may be taken, and leave may be taken only for the period necessary for the employee to undergo the bone marrow or organ donation procedure and to recover from the procedure.

Notice

If an employee intends to take leave for the purpose of serving as a bone marrow or organ donor, the employee shall do all of the following:

  • Make a reasonable effort to schedule the bone marrow or organ donation procedure so that it does not unduly disrupt the employer’s operations, subject to the approval of the health care provider of the bone marrow or organ donee; and
  • Give the employer advance notice of the bone marrow or organ donation in a reasonable and practicable manner.

Certification

If an employee requests bone marrow and organ donation leave, the employer may require the employee to provide certification issued by the health care provider of the bone marrow or organ donee or of the employee, whichever is appropriate, of any of the following:

  • That the donee has a serious health condition that necessitates a bone marrow or organ transplant;
  • That the employee is eligible and has agreed to serve as a bone marrow or organ donor for the donee; and
  • The amount of time expected to be necessary for the employee to recover from the bone marrow or organ donation procedure.

Position Upon Return From Leave

When an employee returns from bone marrow and organ donation leave, his or her employer shall immediately place the employee in an employment position as follows:

  • If the employment position that the employee held immediately before the bone marrow and organ donation leave began is vacant when the employee returns, in that position; and
  • If the employment position that the employee held immediately before the bone marrow and organ donation leave began is not vacant when the employee returns, in an equivalent employment position having equivalent compensation, benefits, working shift, hours of employment, and other terms and conditions of employment.

No employer may, because an employee received bone marrow and organ donation leave, reduce or deny an employment benefit that accrued to the employee before his or her leave began or, accrued after his or her leave began. If an employee on bone marrow and organ donation leave wishes to return to work before the end of the leave as scheduled, the employer shall place the employee in an employment position of the type described above within a reasonable time not exceeding the duration of the leave as scheduled.

Employment Right, Benefit, or Position

Nothing entitles a returning employee to a right, employment benefit, or employment position to which the employee would not have been entitled had he or she not taken bone marrow and organ donation leave or to the accrual of any seniority or employment benefit during a period of bone marrow and organ donation leave.

During a period an employee takes bone marrow and organ donation leave, his or her employer shall maintain group health insurance coverage under the conditions that applied immediately before the bone marrow and organ donation leave began. If the employee continues making any contribution required for participation in the group health insurance plan, the employer shall continue making group health insurance premium contributions as if the employee had not taken the bone marrow and organ donation leave. An employer may require an employee to have in escrow with the employer an amount equal to the entire premium or similar expense for eight weeks of the employee’s group health insurance coverage, if coverage is required.

Alternative Employment

Nothing prohibits an employer and an employee who is serving as a bone marrow or organ donor from mutually agreeing to alternative employment for the employee while the employee recovers from the bone marrow or organ donation procedure. No period of alternative employment, with the same employer, reduces the employee’s right to bone marrow and organ donation leave.

Prohibited Acts 

No person may interfere with, restrain, or deny the exercise of any right provided in the law. No person may discharge or in any other manner discriminate against any individual for opposing a practice prohibited in the law. This applies to discharge or other discriminatory acts arising in connection with any proceeding under the law.

Notice posted

Each employer shall post, in one or more conspicuous places where notices to employees are customarily posted, a notice in a form approved by the Department of Workforce Development (DWD) setting forth employees’ rights under the law. Any employer who violates this notice requirement shall forfeit not more than $100 for each offense. Any person employing at least 25 individuals shall post, in one or more conspicuous places where notices to employees are customarily posted, a notice describing the employer’s policy with respect to leave for organ or bone marrow donors, if any.

Bottom Line

Wisconsin has now joined many other states (and hopefully soon all states) in providing much-needed protection for employees brave and generous enough to donate organs or bone marrow.  Make sure you immediately post an appropriate notice at your company.  Posters are or will be available from DWD in the near future.

For more information about "Wisconsin Now Grants Leave to Employees Donating Bone Marrow or Organs," contact Saul C. Glazer at sglazer@axley.com or 608.260.2473.