Virginia Passes Unpaid Leave for Organ Donation

Employees in Virginia will soon be eligible for up to 60 business days of unpaid organ donation leave and up to 30 days of unpaid bone marrow donation leave within a 12-month period.

Overview of SB 1086:

• Virginia provides eligible employees with up to 60 business days of unpaid organ donation leave within a 12-month period.
• Virginia provides eligible employees with up to 30 business days of unpaid bone marrow donation leave within a 12-month period.
• Virginia organ donation and bone marrow leave is not taken concurrently with federal FMLA leave.

Who qualifies for SB 1086?

SB 1086 requires employers with 50 or more employees to provide organ donation and bone marrow donation leave to any “eligible” employee starting July 1, 2023.

“Organ donation leave” provides for the leave of an eligible employee for the purpose of donating one or more of their organs, including bone marrow, to be medically transplanted into the body of another individual. To be considered “eligible” for this leave, an employee is required to have worked for the employer for at least a 12-month period and at least 1,250 hours during the preceding 12 months.

While these eligibility requirements largely mirror the eligibility requirements under the Family and Medical Leave Act (FMLA), Virginia law expressly states that organ donation leave is not taken concurrently with federal FMLA leave. Employers should consult with legal counsel regarding designating FMLA leave with state organ donation leave.

Details of SB 1086

The leave is unpaid and requires employers to restore employees to the position they held prior to taking their leave, or to an equivalent position with equivalent pay, benefits, and other terms and conditions of employment.

During an eligible employee’s organ donation and/or bone marrow donation leave period, the employer must maintain coverage of the employee’s health plan benefits. The law also requires the employer to pay out any commissions due to the employee that become due during the employee’s leave period, and which result from the employee’s work prior to commencing their leave.

Employers are prohibited from treating organ donation and/or bone marrow donation leave as a break in the employee’s continuous service for purposes of their right to salary adjustments, sick leave, vacation, paid time off, annual leave, seniority, or other applicable employee benefits. Employers are also prohibited from retaliating against employees for requesting or exercising their right to organ donation leave, or employees who have alleged a violation of the organ donation leave law.

The law outlines a schedule for violations, including up to $5,000 for repeated offenses. Employers should prepare now for this new leave benefit to go into effect this summer.

Action Steps for SB 1086:

1. Have applicable employee leave policies updated.
2. Have appropriate personnel trained on the new leave requirements.

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