BILL ANALYSIS
SB 1304
Page 1
Date of Hearing: June 29, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1304 (DeSaulnier) - As Amended: May 18, 2010
SENATE VOTE : 22-13
SUBJECT : EMPLOYMENT LEAVE: ORGAN AND BONE MARROW DONATIONS
KEY ISSUE : SHOULD EMPLOYEES BE ENTITLED TO LEAVE TIME FOR THE
PURPOSE OF MAKING ORGAN AND BONE MARROW DONATIONS IN ORDER TO
REMOVE A SIGNIFICANT OBSTACLE TO THESE DONATIONS, WHICH ARE MUCH
NEEDED, PARTICULARLY IN MINORITY COMMUNITIES, AND CAN MEAN THE
DIFFERENCE BETWEEN LIFE AND DEATH FOR THOSE WHO ARE SERIOUSLY
ILL?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill requires employers to allow employees to take paid
leaves of absence, similar to those currently available to state
employees, for the purposes of organ and bone marrow donations.
Supporters argue that wage loss is a significant barrier to
these donations, which are badly needed by patients with cancer
and other life-threatening conditions, and frequently depend on
close genetic matches correlated with race. Donations are
particularly scarce for non-white demographic groups.
Accordingly, this bill seeks to remove barriers for private
employees to take paid leaves of absences for these purposes.
Opponents argue generally that government should have no role in
establishing employment leave rules for this purpose, and
specifically that the policy prescribed by this bill is onerous
and unreasonable.
SUMMARY : Establishes a medical donation protection act to
ensure that large employers provide specified leaves of absence
for employees making organ or bone marrow donations.
Specifically, this bill :
1)Requires an employer with 15 or more employees to provide up
to 30 days of paid leave for an organ donation and up to 5
days of paid leave for a bone marrow donation.
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2)Provides that, in order to receive a leave of absence, a
private employee would 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)Allows an employer to require as a condition of an employee's
initial receipt of bone marrow or organ donation leave that an
employee take up to five days of earned but unused sick or
vacation leave for bone marrow donation and up to two weeks of
earned but unused sick or vacation leave for organ donation,
unless doing so would violate the provisions of any applicable
collective bargaining agreement.
4)Specifies that bone marrow and organ donation leave shall not
be taken concurrently with any leave taken pursuant to the
federal Family and Medical Leave Act of 1993 or the California
Family Rights Act.
5)Prohibits an employer from interfering with, restraining or
denying the exercise of the rights established by the act or
from retaliating against an employee for taking an authorized
leave or opposing an unlawful employment practice related to
organ or bone marrow donation leave.
EXISTING LAW :
1)Pursuant to the federal Family Medical Leave Act (FMLA) and
the California Family Rights Act (CFRA), requires 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. (29 U.S.C. Sec. 2601 et seq.; 29 CFR Part 825;
Gov. Code Sec. 12945.2.)
2)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.
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(Gov. Code Sec. 19991.11.)
COMMENTS : The purpose for this bill is to provide a leave of
absence for employees who participate in organ and bone marrow
donation. According to the author, this bill originated from a
constituent, Megan Williams (Hoang Thu) of Walnut Creek after
her daughter Michelle, passed away from leukemia in 2009. The
author states:
While cancer impacts all of us, cancers such as leukemia
are particularly deadly to diverse, ethnic communities due
to the overwhelming small number of individuals registered
to donate bone marrow. When a bone marrow match cannot be
found within a family, individuals must reach out to the
bone marrow donation registry to find individuals of the
same ethnicity.
Nationally, the donor registry is 74 percent Caucasian and
only 7.1 percent Asian Pacific Islander (API). This
overstates the donation and match rate since a Korean
cancer patient, for example, would most likely need a bone
marrow donation from a Korean donor, rather than another
donor of the API community.
According to the author, SB 1304 would remove a major impediment
to organ and bone marrow donation by lowering the cost to
individuals associated with taking unpaid leaves of absences
from their employment. Supporters state that at least one study
has demonstrated that wage loss is a significant barrier to bone
marrow donation. Accordingly, this bill seeks to remove
barriers for private employees to take paid leaves of absences
for these purposes.
This Bill Would Extend To Private Sector Employees A Right To
Leave Time Currently Provided To State Employees. The author
notes that current law provides state employees with a leave of
absence to donate an organ or bone marrow if the employee has
exhausted all available sick leave time. Currently, private
sector employees are not provided the same benefit, which
supporters contend does not promote organ and bone marrow
donation, contributing to the unnecessary loss of lives. The
author argues that this bill has been crafted to ensure
protected leave for a limited period, and only for companies
that are large enough to afford providing such leave to their
employees. By authorizing this leave, supporters argue, this
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bill will encourage an increase in the size and diversity of the
bone marrow donation registry.
Demographic Data on Medical Registries . The National Marrow
Donor Program (NMDP) is the national registry providing bone
marrow tissue for individuals who require new bone marrow for
the treatment of a variety of diseases and cancers, including
leukemia, lymphoma, and certain pediatric diseases, such as
sickle cell anemia and certain immunodeficiency disorders. In
FY 2009, there were 266 bone marrow donations in California;
that number is expected to increase by 12 percent in FY 2010.
Generally, a patient is more likely to find a bone marrow match
from a relative or a member of the same ethnic group.
As demonstrated by the statistics below, patients who are white
have a higher chance of finding a bone marrow match, and
therefore receiving successful treatment. This is particularly
troubling since minorities make up 64 percent of organ
transplant candidates and 71 percent of those awaiting kidneys
in California. Nationally, the demographic breakdown of the
NMDP bone marrow registry was:
-----------------------------------------------------------------
|Composition of the Match |Percentage of Potential |
|Registry by Race and Ethnicity |Adult Donors (Rounded) |
|--------------------------------+--------------------------------|
|African American or Black |7% |
|--------------------------------+--------------------------------|
|American Indian/Alaska Native |1% |
|--------------------------------+--------------------------------|
|Asian |7% |
|--------------------------------+--------------------------------|
|Hispanic (identified as either |10% |
|Hispanic | |
|or Latino ethnicity) | |
|--------------------------------+--------------------------------|
|Multiple Race |3% |
|--------------------------------+--------------------------------|
|Native Hawaiian or |.1% |
|Other Pacific Islander | |
|--------------------------------+--------------------------------|
|White |74% |
-----------------------------------------------------------------
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Similar Laws In Other States . The author reports that,
according to National Conference of State Legislatures, 29
states have enacted laws that provide both private and public
employees, paid or unpaid leave for bone marrow and/or organ
donors. Of these, 23 states allow paid leave for state
employees for bone marrow and/or organ donation. There are
reportedly 8 states (Arkansas, Connecticut, Illinois, Louisiana,
Maine, Minnesota, Nebraska and Oregon) that allow a leave of
absence for private sector employees. The period of leave is
usually 30 days for organ donors and 7 days for bone marrow
donors. Some state laws have provisions which require
authorization for requested leave or prohibit states from
penalizing employees from taking such leave.
ARGUMENTS IN OPPOSITION : The Administration and business groups
oppose the bill. The Department of Industrial Relations takes
the position that government should let employee leave rules be
determined by negotiations between the employer and the
employee, not by law. Business groups make a virtually
identical argument. They state: "We do not believe a new
private sector mandate is the appropriate role of government or
the correct policy approach for advancing this laudable goal.
Creating a new paid leave mandate removes flexibility employers
need to balance overlapping leave requests by different
employees for a variety of important reasons, and can be
especially challenging for small businesses with limited staff."
The business advocates further assert that small business
bankruptcies are at an all-time high, and that a new paid leave
mandate will increase the cost of doing business, "which may
unfortunately translate into fewer jobs or other leaves and
benefits that employers currently provide."
Potential Amendments To Address Opposition Concerns . To
alleviate opposition concerns about employer flexibility, the
author may wish to amend the bill to allow the leave to be
scheduled in consultation with the employer. Unlike virtually
every other leave of absence, the timing of organ and bone
marrow donations should in most cases be amenable to some
scheduling flexibility in order to accommodate legitimate
business needs. The author may also wish to respond to the
small-business argument by increasing the size of covered
employers, perhaps comparably to the existing family and medical
leave protections - e.g., 50 or more employees within a 75 mile
radius - rather than the 15-employee threshold currently in the
bill. In addition, or alternatively, the author might consider
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eliminating the requirement that the leave be paid.
Prior Related Legislation. AB 485 (Carter, Chapter 242,
Statutes of 2009), required 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 Patrol.
AB 392 (Lieu, Chapter 361, Statutes of 2007) allowed 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) required that
leaves of absence with pay be granted to state employees and
employees of the California State University who are organ or
bone marrow donors and allowed the Regents of the University of
California to adopt the same leave of absence provisions.
REGISTERED SUPPORT / OPPOSITION :
Support
Project Michelle (sponsor)
American Cancer Society
AFSCME
Asian American Donor Program
Asians for Miracle Marrow Matches
Asian & Pacific Islander American Health Forum
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
Consumer Attorneys of California
Dave Cortese, County of Santa Clara Supervisor, District Three
Donate Life California
Leukemia and Lymphoma Society
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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
SEIU Local 1000
numerous individuals
Opposition
Associated General Contractors
California Chamber of Commerce
California Construction & Industrial Materials Association
California Employment Law Council
California Independent Grocers Association
National Federation of Independent Business
Western Electrical Contractors Association
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334