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New Virginia law for organ donation leave

By Katarina Niparko, Compliance Counsel

On April 12, 2023, Virginia enacted Senate Bill 1086, which creates a new “Organ Donation Leave” law.

This new law would require employers with 50 or more employees (not including the federal government) to provide eligible employees with unpaid, job-protected organ donation leave. An employee is eligible if, on the date that the requested organ donation leave begins, the employee has been employed by the employer for at least a 12-month period and 1,250 hours during the previous 12 months. Organ donation is defined in the law as “leave of an eligible employee for the purpose of donating one or more of such employee’s human organs, including bone marrow, to be medically transplanted into the body of another individual.”

Eligible employees will receive the following entitlement for organ donation leave:

  • Up to 60 business days of leave in any 12-month period to serve as an organ donor.
  • Up to 30 business days of leave in any 12-month period to serve as a bone marrow donor.

The law does not currently define “business days,” whether it means days the company is open or days the employee is scheduled to work.

In order to qualify for the leave, the eligible employee must provide the employer with written physician verification that states:

  • The eligible employee is an organ donor or a bone marrow donor; and
  • There is a medical necessity for the donation of the organ or bone marrow.

The law specifies that employees must not take organ donation leave concurrently with leave under the federal FMLA. The federal FMLA may not be delayed if the reason for leave qualifies, therefore, if an eligible employee has time available under the federal FMLA, it is assumed that coverage under this new law would then follow, as it is not clarified in the legislation. This leave is unpaid, but eligible employees may take paid sick leave or other paid time off in addition to or in lieu of organ donation leave.

While the eligible employee is out on leave, employers must maintain health care benefit plan coverage for the duration of the organ donation leave, as if the employee had not taken leave. Additionally, if an employee works on a commission basis, the employer must pay the employee any commission that becomes due, based on work performed by the employee before taking leave. This is job-protected leave, so employees have the right to be restored to the same or an equivalent position upon their return to work. Retaliation for requesting or taking leave is prohibited.

Further guidance will likely become available, as the new law requires the Commissioner of Labor to adopt appropriate guidance for the implementation and enforcement of this new law.

This new law becomes effective July 1, 2023.

Virginia organ donation leave law - what employers should do

Employers with an employee population in Virginia should be prepared to offer this new Organ Donation Leave, starting July 1, 2023. The law does not discourage or prohibit employers from offering or adopting a more generous leave policy, and as mentioned above, employers must allow employees to use paid sick leave or other paid time off to which the employee is otherwise entitled in addition to or in lieu of organ donation leave.

What will Alight do to support this new law?

We’ve reached out to the Commonwealth of Virginia for clarification on several components and will update this article as additional information becomes available. Alight plans to expand our services to include this new leave law.

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