BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 1304 (DeSaulnier)
As Amended April 19, 2010
Hearing Date: April 20, 2010
Fiscal: Yes
Urgency: No
KB:jd
SUBJECT
Employment Leave: Organ and Bone Marrow Donations
DESCRIPTION
This bill would also require 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. This bill would also prohibit
retaliation against employees who take this leave, and would
authorize an employee to bring a civil action to enforce the
provisions of this bill.
BACKGROUND
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, there were 266 bone marrow donations in California, and
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
(more)
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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% |
-----------------------------------------------------------------
To help meet this growing need, 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. 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 was approved by the Senate Labor and Industrial
Relations Committee on April 19, 2010 by a vote of 4 to 2.
CHANGES TO EXISTING LAW
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
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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.)
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.
(Gov. Code Sec. 19991.11.)
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 provide 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.
This bill would provide 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.
This bill would provide 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 leave began
or to an equivalent position.
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 authorize an employee to bring a civil action in
the appropriate superior court to enforce the provisions of this
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bill, including issuance of an injunction and other necessary
and appropriate relief.
COMMENT
1. Stated need for the bill
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.
In support of this bill, the Asian & Pacific Islander American
Health Forum writes:
Many [Asian Americans] and [Native Hawaiian Pacific Islanders]
work in sectors without access to paid leave, possibly forcing
these individuals from deciding between taking time off to
complete a life-saving procedure versus keeping their job to
maintain their livelihood. SB 1304 would help prevent
individuals from having to make this difficult choice through
an assurance that the individual could return to the same
position and take paid leave for bone marrow and organ
donation.
2. Bill would require paid leave of absences for private
employees
Current law only provides public employees with the right to
take a paid leave of absence for the purposes of organ and
bone marrow donation. (Gov. Code Sec. 19991.11.) As
previously stated, this leave may not exceed five days for
bone marrow donation, and 30 days for organ donation. A leave
of absence for this purpose does not constitute a break in the
public employee's continuous service for the purpose of his or
her right to salary adjustments, sick leave, vacation, annual
leave, or seniority. (Id.) If the employee is able to return
to work within the period of projected leave, he or she is
entitled to return to his or her former position. (Id.)
This bill would create comparable rights for private employees
who work for an entity that employs 15 or more employees.
Private employers who meet this threshold would be required to
provide their employees with paid leaves of absences for the
time periods currently available to state employees (five days
for bone marrow donation and 30 days for organ donation.)
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Private sector employees would have to provide the same
written verification of medical necessity that public
employees must provide prior to taking the paid leave of
absence. Further, the paid leave of absence would not
constitute a break in the private employee's continuous
service for the purpose of employment benefits, salary, or
seniority. Any collective bargaining agreement that provides
greater benefits to the employee than that provided under the
bill would supersede the benefits provided by SB 1304. The
rights provided for under this bill could not be diminished by
a future collective bargaining agreement or employee benefit
plan.
Upon completion of the employee's leave of absence, the
private employer would be required to restore the employee to
the same position he or she had prior to the leave, or to
another position but with equivalent pay and seniority status,
benefits, and other terms and conditions of employment.
However, the employer may decline to reinstate the employee
for reasons unrelated to the employee's exercise of rights to
leave under this bill.
Finally, this bill specifically provides that a private
employer may not interfere with, restrain, or deny an
employee's exercise or attempt to exercise the rights provided
by the bill. Further, an employer may not take any adverse
action (discharge, expel, suspend, discipline, or in any way
discriminate) against an employee who exercises a right
provided under the bill or who opposes a practice made
unlawful by the bill.
SB 1304 would authorize a private employee to bring a civil
action in the appropriate county superior court in order to
enforce rights under this bill and authorizes a court to issue
an injunction or order other equitable relief to redress any
violation. This is consistent with the rights which the
Legislature has provided in connection to other types of leave
of absences, such as those currently in place for members of
the California Wing of the Civil Air Patrol so they may
perform authorized emergency operational missions. (Lab. Code
Sec. 1500 et seq.)
Committee staff notes that unlike public employees, this bill
would not require that private employees exhaust all available
sick days prior to being entitled to take a paid leave of
absence for the purposes of bone marrow or organ donation.
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Thus, a private employee could presumably request a paid leave
of absence to donate bone marrow or an organ without first
utilizing any accrued sick leave. This committee may wish to
inquire of the author whether this was the intended effect.
3. Opposition
Opponents argue that, while 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 assert 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.
Support : Asian & Pacific Islander American Health Forum;
California State Employees Association; Consumer Attorneys of
California; Donate Life California; National Kidney Foundation;
National Marrow Donor Program; SEIU, Local 1000
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
HISTORY
Source : Project Michelle
Related Pending Legislation : None Known
Prior 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
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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.
Prior Vote : Senate Labor and Industrial Relations Committee
(Ayes 4, Noes 2)
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