BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Mark DeSaulnier, Chair
Date of Hearing: April 14, 2010 2009-2010 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: SB 1304
Author: DeSaulnier
Version: As Introduced February 19, 2010
SUBJECT
Employment: leave and benefits.
KEY ISSUE
Should the Legislature require employers to provide paid leave
for employees who volunteer to donate bone marrow or organ
tissue, as well as prohibit employer discrimination against any
employee who utilizes this leave?
PURPOSE
To provide job protection and paid leave for bone marrow and
organ tissue donors in the event of the donor being matched with
a patient.
ANALYSIS
Existing federal and state laws, known as 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 5 days for bone marrow donation.
This bill would eliminate the requirement that a state employee
exhaust all available sick leave prior to being entitled to the
above-recited paid leaves of absence.
This bill would also require 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 5 days of paid leave for a bone marrow
donation.
This bill would prohibit 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.
This bill would also create a private right of action for an
aggrieved employee to seek enforcement of these provisions.
COMMENTS
1. Need for this bill?
Existing law provides employment leave for either certain
classes of employees, such as volunteer members of the Civil
Air Patrol, or for employees that are employed by an employer
of a certain size for medical reasons or child bonding, such
as the California Family Rights Act (CFRA) or Paid Family
Leave (PFL). However, current employment leave provided for
medical reasons does not allow an employee to take leave from
their employment for non-relatives, with the exception of a
spouse or domestic partner.
Existing law also provides for the State Disability Insurance
(SDI), which provides partial wage replacement if a worker
becomes disabled. Bone marrow or organ tissue donation would
Hearing Date: April 14, 2010 SB 1304
Consultant: Gideon L. Baum Page 2
Senate Committee on Labor and Industrial Relations
qualify since these procedures would prohibit someone from
working. However, the current structure of SDI would pose
some challenges for a worker seeking wage replacement due bone
marrow or organ tissue donation.
For one, SDI requires that an employee be disabled for at
least 8 days before that employee would be eligible for
benefits. According to the National Marrow Donor Program,
which operates the bone marrow registry, the period of
disability for the average bone marrow donor would be 2 to 7
days, which would prevent the utilization of SDI. Another
challenge is that SDI can only begin when a worker becomes
disabled. For an employee donating bone marrow or organ
tissue, this period of disability would begin after the
donation, when the employee would already be unable to work,
creating a delay between the surgery and the successful filing
of a SDI claim. Finally, SDI only provides partial wage
replacement, which may not provide enough financial assistance
to allow an employee to donate bone marrow or organ tissue.
Therefore, SB 1304 is a departure from the structure of
existing employment leave provisions and addresses perceived
short fallings in the SDI program. While similar to CFRA in
providing protected leave and PFL in providing paid leave,
this bill would extend these provisions to employees that seek
voluntary medical procedures to treat diseases and prolong the
lives of patients which may or may not be known to the
employee taking the leave. Unlike State Disability Insurance
(SDI), SB 1304 would provide full wage replacement and begin
as soon as the donation occurred.
2. Bone Marrow and Organ Tissue Donation in Brief:
Currently, the National Marrow Donor Program (NMDP) is the
national bone marrow registry for the United States. The NMDP
provides bone marrow tissue for individuals that 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, 266 bone marrow
donations occurred in California, and that number is expected
to increase by 12% in FY 2010.
Hearing Date: April 14, 2010 SB 1304
Consultant: Gideon L. Baum Page 3
Senate Committee on Labor and Industrial Relations
Generally, a patient is more likely to find a bone marrow
match from a relative or a member of the same ethnic group.
Nationally, the demographic breakdown of the NMDP bone marrow
registry was:
-------------------------------------------------
|Composition of the Be The |Percentage of |
|Match |Potential |
|Registry by Race and |Adult Donors |
|Ethnicity |(Rounded) |
|----------------------------+--------------------|
|African American or Black |7% |
|----------------------------+--------------------|
|American Indian/Alaska |1% |
|Native | |
|----------------------------+--------------------|
|Asian |7% |
|----------------------------+--------------------|
|Hispanic (identified as |10% |
|either Hispanic | |
|or Latino ethnicity) | |
|----------------------------+--------------------|
|Multiple Race |3% |
|----------------------------+--------------------|
|Native Hawaiian or |.1% |
|Other Pacific Islander | |
|----------------------------+--------------------|
|White |74% |
-------------------------------------------------
As such, patients that are white have a higher chance of
finding a bone marrow match, and therefore receiving
successful treatment. Therefore, the NMDP and other bone
marrow donation organizations are currently involved with a
variety of activities to increase minority participation in
the bone marrow registry. However, at least one study has
demonstrated that wage loss is a significant barrier to bone
marrow donation.
Currently, organ tissue donation largely remains an
end-of-life issue, and therefore is outside the scope of
Hearing Date: April 14, 2010 SB 1304
Consultant: Gideon L. Baum Page 4
Senate Committee on Labor and Industrial Relations
employment leave issues. One notable exception is kidney
donation, where a donor donates one of his or her two kidneys,
providing the patient with a fully functioning organ with
limited health implications. Moreover, as medical science
advances, treatments are in development that utilize of part
of an organ, rather than the entire organ, which could
increase both the need and utilization of organ tissue
donation.
3. Proponent Arguments :
Proponents note that, even with 7 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 note 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.
4. Opponent Arguments :
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 argue 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.
Hearing Date: April 14, 2010 SB 1304
Consultant: Gideon L. Baum Page 5
Senate Committee on Labor and Industrial Relations
5. Prior Legislation :
AB 485 (Carter), Statutes of 2009, Chapter 242, 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 Patrol.
AB 392 (Lieu), Statues of 2007, Chapter 361, 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), Statutes of 2002, Chapter 869, provides for
the current leave provisions discussed above for state
employees.
6. NOTE: SB 1304 has been double-referred to the
committee on Rules.
SUPPORT
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
Asian & Pacific Islander American Health Forum
Association of California State Supervisors
California Employment Lawyers Association
California Nurses Association/National Nurses Organizing
Committee
California State Employees Association
California State Employees Association Retirees, Inc.
California State University Employees Union
California Transplant Donor Network - Oakland, Modesto, and
Fresno, CA
Consumer Attorneys of California
Donate Life California, Sacramento, CA
Lakeview Family Medicine, PLLC, Seattle, WA
Madison P. Nguyen, Councilmember, Dist. 7 - City of San Jose
Hearing Date: April 14, 2010 SB 1304
Consultant: Gideon L. Baum Page 6
Senate Committee on Labor and Industrial Relations
National Kidney Foundation - Northern California
Service Employees International Union Local 1000
Viet Lam, MD, San Francisco
Form letter from 517 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
* * *
Hearing Date: April 14, 2010 SB 1304
Consultant: Gideon L. Baum Page 7
Senate Committee on Labor and Industrial Relations