BILL ANALYSIS
SB 1304
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Date of Hearing: June 23, 2010
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
SB 1304 (DeSaulnier) - As Amended: May 18, 2010
SENATE VOTE : 22-13
SUBJECT : Employment Leave: Organ and Bone Marrow Donations.
SUMMARY : 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 prohibits retaliation against
employees who take this leave, as specified. Specifically, 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 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.
5)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 leave began or to an
equivalent position.
6)Prohibits a private employer from interfering with an employee
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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.
7)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.
8)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.
9)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. Also, specifies that bone marrow or organ
donation leave may be taken in one or more periods.
10)States that the rights provided for under these provisions
shall not be diminished by a collective bargaining agreement
or employee benefit plan entered into on or after January 1,
2011.
EXISTING LAW
1)Provides employees the opportunity to take both paid and
unpaid time away from work without fear of discharge or
discrimination for a number of specified purposes.
2)Allows state employees who have exhausted all available sick
leave 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.
FISCAL EFFECT : Unknown
COMMENTS : Responding to the author's annual "There Ought to Be
a Law" contest, Megan Williams (Hoang Thu) of Walnut Creek
proposed this legislation after her daughter Michelle, passed
away from leukemia in 2009.
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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.
The author states that current law provides state employees with
a leave of absence to donate an organ or bone marrow if the
employee has exhausted all of their available sick leave.
Currently, private sector employees are not provided the same
benefit, which does not promote organ and bone marrow donation
contributing to the unnecessary loss of lives.
Additionally, the author believes 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 thereby encouraging an increase to the size
and diversity of the bone marrow donation registry.
ARGUMENTS IN SUPPORT:
Supporters 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. Supporters also 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.
Supporters argue that this outcome not only affects the patient
and the patient's family, but the extended family, friends, and
community as well.
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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.
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 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.
STAFF COMMENT :
This bill is double referred to Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
American Cancer Society
American Federation of State, County and Municipal Employees
Asian & Pacific Islander American Health Forum
Asian American Donor Program
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Asians for Miracle Marrow Matches
BPSOS
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
County of Santa Clara Board of Supervisors
Dave Cortese, County of Santa Clara Supervisor
Donate Life California
Lakeview Family Medicine, PLLC
Madison Nguyen Councilmember, City of San Jose
National Kidney Foundation of Northern California & Northern
Nevada
National Marrow Donor Program
Project Michelle (sponsor)
Service Employees International Union
The Leukemia & Lymphoma Society
Viet Lam, MD
Opposition
Associated General Contractors
California Chamber of Commerce
California Construction & Industrial Materials Associations
California Employment Law Council
California Independent Grocers Association
Department of Industrial Relations, State of California
National Federation of Independent Business
Western Electrical Contractors Association
Analysis Prepared by : Lorie Erickson / L. & E. / (916)
319-2091