Must an employee be given time off to donate bone marrow?

Some employers may wish to offer time away from work for employees to donate bone marrow. In some states, bone marrow donation leave is mandated. In addition, bone marrow donation leave may qualify as FMLA leave. Be sure to check State Laws for the laws that apply in your state(s).

If state law requires my company to provide leave for bone marrow donation, what issues should be addressed? Employers should be aware of the following state law issues concerning leave for bone marrow donation:

• Is there a provision in the state law prohibiting retaliation against employees who request or take such a leave?

• Is it an unlawful employment practice for an employer to refuse to grant already accrued paid leaves of absence to an employee who wants to donate bone marrow?

• Can employers require a physician's verification of the purpose and length of each requested leave?

• When the employee does not qualify as a bone marrow donor, is the paid leave used by the employee prior to that medical determination affected?

• How does the state law coordinate with FMLA requirements when applicable?

What issues should my company consider when designing a bone marrow donation leave program? When designing a bone marrow donation leave policy, your company should address the following issues:

• What documentation is necessary to establish that the employee is a participant in a bone marrow donation?

• How much time will be authorized?

• Can the leave be extended and under what circumstances?

• Is advance notice required, and if yes, how much notice?

• Does leave coordinate with FMLA? If yes, how? What if there are medical complications for the employee after donating marrow?

• Does the employee have reinstatement rights, and if so, what rights exist?

• Are all employees eligible for leave?

• Under what circumstances, if any, will a leave request be denied?

• Is there a minimum length of service required prior to eligibility for leave? Are any levels of employees exempt from the service requirements?

• Must the employee be in good standing to request leave?

• Is the relationship to the recipient of the donation a factor in granting leave? For example, does the recipient have to be a member of the donor's family?

• Is the leave paid? Can paid leave such as vacation or paid sick leave (if available) be used to provide pay during leave?

• Does the company's group insurance cover any medical expenses associated with bone marrow donation?

• How does an employee secure approval for leave?

• How is leave approval documented? Who is responsible to follow up to ensure that the employee returns from leave? Are leaves audited?

• What documentation is required upon return? How is the documentation maintained?

• What provisions will be made for regular payroll deductions while on unpaid leave?

• For retirement purposes, is there a break in service while on leave?

• How is the benefit communicated?

• Will the employee be terminated if he or she fails to return as scheduled? How will the employee be advised?