BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 1304| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: SB 1304 Author: DeSaulnier (D), et al Amended: 5/18/10 Vote: 21 SENATE LABOR & INDUSTRIAL RELATIONS COMM : 4-2, 4/19/10 AYES: DeSaulnier, Ducheny, Leno, Yee NOES: Wyland, Hollingsworth SENATE JUDICIARY COMMITTEE : 3-1, 4/20/10 AYES: Corbett, Hancock, Leno NOES: Harman NO VOTE RECORDED: Walters SUBJECT : Employment Leave: Organ and Bone Marrow Donations SOURCE : Project Michelle DIGEST : This bill (1) requires private employers to permit employees to take paid leaves of absence, similar to those currently available to public employees, for the purposes of organ and bone marrow donations, and (2) prohibits retaliation against employees who take this leave, and would authorize an employee to bring a civil action to enforce the provisions of this bill. Senate Floor Amendments of 5/18/10 require employers to maintain an employee's health plan coverage during his/her leave and allow for the exhaustion of a certain amount of CONTINUED SB 1304 Page 2 sick leave. ANALYSIS : Existing federal and state laws, the federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), require all employers with 50 or more employees within a 75 mile radius to grant 12 weeks of unpaid family leave in a 12-month period to any employee who is eligible. This leave can be taken by an employee for the purposes of child birth, care of a newly adopted child or newly placed foster child, and serious health conditions for the employee, the employee's spouse or registered domestic partner, or for the employee's parent. With certain exceptions, the employee taking the leave must be reinstated. Existing law requires that employees of the state who have exhausted all available sick leave be allowed to take a leave of absence with pay, not exceeding 30 days for the purpose of organ donation and not exceeding five days for bone marrow donation. This bill: 1.Requires any business entity that employs 15 or more employees to provide up to 30 days of paid leave for an organ donation and up to five days of paid leave for a bone marrow donation. 2.Provides that, in order to receive a leave of absence, a private employee be required to provide written verification to his or her employer that he or she is an organ or bone marrow donor, and that there is a medical necessity for the donation of the organ or bone marrow. 3.Provides that any period of time during which a private employee is required to be absent from his or her position by reason of being an organ or bone marrow donor is not a break in continuous service for the purposes of the employee's right to salary adjustments, sick leave, vacation, annual leave, or seniority. 4.Provides that a private employer shall, upon expiration of a paid leave authorized by this bill, restore an employee to the position held by him or her when the CONTINUED SB 1304 Page 3 leave began or to an equivalent position. 5.Prohibits a private employer from interfering with an employee taking organ or bone marrow donation and from retaliating against an employee for taking such leave or opposing an unlawful employment practice related to organ or bone marrow donation leave. 6.Authorizes an employee to bring a civil action in the appropriate superior court to enforce the provisions of this bill, including issuance of an injunction and other necessary and appropriate relief. 7.Allows employers to require employees to take up to five days of accrued sick or vacation leave for bone marrow donation and up to two weeks of earned and unused sick or vacation leave for organ donation, unless doing so would violate the provisions of any applicable collective bargaining agreement. Thus, private employees, similar to public employees, could be required to exhaust a certain amount of accrued leave as a condition of an employee's initial receipt of bone marrow or organ donation leave. 8.Provides that bone marrow and organ donation leave shall not be taken concurrently with any leave pursuant to the federal Family and Medical Leave Act of 1993 or the California Family Rights Act. These amendments would also specify that bone marrow or organ donation leave may be taken in one or more periods. 9.Provides that during any period that an employee takes leave for the purposes of bone marrow or organ donation, the employer shall maintain and pay for coverage under a group health plan for the full duration of the leave. Prior Legislation AB 485 (Carter), Chapter 242, Statutes of 2009 . Requires employers to provide unpaid leave for employees who are volunteer members of the California Wing of the Civil Air Patrol when they respond to an authorized emergency operational mission, and prohibits employer discrimination against any employee who is a member of the Civil Air CONTINUED SB 1304 Page 4 Patrol. AB 392 (Lieu), Chapter 361, Statues of 2007 . Allows the spouses of service members of the armed forces to take up to 10 days of unpaid leave when their spouse is on qualified leave from military deployment. AB 1825 (Nakano), Chapter 869, Statutes of 2002 . Provides for the current leave provisions discussed above for state employees. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 6/1/10) Project Michelle (source) American Cancer Society American Federation of State, County and Municipal Employees, AFL-CIO Asian & Pacific Islander American Health Forum Asian American Donor Program Asians for Miracle Marrow Matches Association of California State Supervisors Boat People SOS California Employment Lawyers Association California Nurses Association/National Nurses Organizing Committee California Pan-Ethnic Health Network California State Employees Association California State Employees Association Retirees, Inc. California State University Employees Union California Transplant Donor Network - Oakland, Modesto, and Fresno Consumer Attorneys of California Dave Cortese, County of Santa Clara, Supervisor, District 3 Donate Life California Lakeview Family Medicine, PLLC Leukemia and Lymphoma Society Madison P. Nguyen, Councilmember, Dist. 7 - City of San Jose National Kidney Foundation of Northern California National Marrow Donor Program Santa Clara County Board of Supervisors CONTINUED SB 1304 Page 5 Service Employees International Union, Local 1000 OPPOSITION : (Verified 6/1/10) Associated General Contractors California Chamber of Commerce California Construction & Industrial Materials Association California Employment Law Council California Independent Grocers Association Department of Industrial Relations National Federation of Independent Business Western Electrical Contractors Association ARGUMENTS IN SUPPORT : Proponents note that, even with seven million potential donors on the U.S. Registry, some patients are unable to find a match due to the rareness of their tissue traits. When rare conditions or tissue requirements arise, it may be that only a single match or small number of matches can be found. However, proponents believe that unavailability due to work is a growing problem, and potential donors are unable to take the necessary time off of work for various reasons, including no vacation or sick time, pressure at work, or having the support of their employers. Proponents state that the lack of available donors in these cases may lead to that patient dying before another donor can register and be identified as a match. Proponents argue that this outcome not only affects the patient and the patient's family, but the extended family, friends, and community as well. ARGUMENTS IN OPPOSITION : Opponents argue that, while this legislation is well-intentioned and organ and bone marrow donations ought to be encouraged in our society, they do not believe a new private sector mandate is the appropriate role of government or the correct policy approach for advancing this laudable goal. Opponents maintain that creating a new paid leave mandate removes employer flexibility that is necessary to the operation of a business. Opponents also note that small business bankruptcies are at an all-time high, and argue that a new paid leave mandate will increase the cost of doing business and may unfortunately translate into fewer jobs or other leaves and benefits that employers currently provide. CONTINUED SB 1304 Page 6 PQ:nl 6/1/10 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED