Virginia Passes Organ Donation Leave Law

Covered employers have 50 or more employees, including the Commonwealth and its agencies, institutions, and political subdivisions. Eligible employees have been employed for at least a 12-month period and worked at least 1,250 hours during the previous 12 months.

A covered employer must grant an eligible employee leave to donate one or more of such employee’s human organs, including bone marrow, to be medically transmitted into another individual's body. The amount of leave is up to 60 business days in any 12-month period to serve as an organ donor and up to 30 business days in any 12-month period to serve as a bone marrow donor. The leave is unpaid, although employees generally will be able to use an employer’s available paid leave.

To receive the organ donation leave, an eligible employee must provide written physician verification to the employer that the eligible employee is an organ or bone marrow donor and that there is a medical necessity for organ or bone marrow donation. Employees may not take organ donation leave concurrently with leave under the federal Family and Medical Leave Act.

The law prohibits employers from considering any period of organ donation leave to be a break in the eligible employee’s continuous leave of service for the purposes of an eligible employee’s right to salary adjustments, seniority, and paid leave entitlements.

An employer generally must restore an eligible employee returning from such leave to the same position they left or to an equivalent position in terms of benefits, pay, and other terms and conditions of employment.

During organ donation leave, an employer must maintain health benefit plan coverage in the same manner that would have been provided had the employee not taken the leave.

Employers are prohibited from retaliating against employees who requested or exercised rights under the law or alleged a violation of the law.

The law is enforced by the Commissioner of Labor. Aggrieved employees will be able to file a complaint with the Commissioner within one year of the violation. An employer who knowingly violates the law will be subject to a civil penalty of up to $1,000 for the first violation, $2,500 for the second violation, and up to $5,000 for each successive violation.

The ArentFox Schiff Labor & Employment Group will continue to monitor this development. Should you have any questions, please contact the author or the ArentFox Schiff professional who regularly handles your matters.