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
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
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 5/28/10)
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
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
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
Service Employees International Union, Local 1000
SB 1304
Page
5
OPPOSITION : (Verified 5/28/10)
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
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.
PQ:nl 5/28/10 Senate Floor Analyses
SB 1304
Page
6
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****