By: Sally A. Piefer
Wisconsin law mandates a number of different leaves for employees, including family and medical leave. Effective July 1, 2016, Wisconsin joined the growing number of states which now require private employers to provide leave for employees who are bone marrow or organ donors. This new law warrants the attention of Wisconsin employers.
Many of the provisions of the donation leave follow Wisconsin’s Family & Medical Leave law (WFMLA). Like the WFMLA, the new law applies to employers with 50 or more employees. Employees are eligible for the leave if they have worked for the employer for at least 52 consecutive weeks and have worked at least 1,000 hours during that 52-week period. The law allows eligible employees up to 6 weeks of unpaid leave during a 12-month period, but employees may substitute other paid leave provided by the employer.
Employees are required to schedule the donation procedure so that it doesn’t unduly disrupt an employer’s operations, and must give the employer reasonable advance notice of the need for the leave. Employers can ask the employee to provide certification of the need for the leave, but this certification is limited to:
- Confirmation the donee has a serious health condition the necessitates a bone marrow or organ transplant;
- The employee is eligible and has agreed to serve as a bone marrow or organ donor for the donee; and
- The amount of time expected to be necessary for the employee to recover from the bone marrow or organ donation procedure.
In addition to providing the leave, employers must also maintain the employee’s group health insurance coverage under the same conditions as existed immediately before the leave began. If the employee makes his/her contribution to the group insurance coverage, the employer must also continue making its share of the premium payment.
Provided the employee returns to work within the 6 weeks allowed for donation leave, the employee must be reinstated to the same position held when the leave began, or if that position is no longer vacant, to an equivalent position “having equivalent compensation, benefits, working shift, hours of employment, and other terms and conditions of employment.”
There is nothing in the donation law which prohibits an employer from having donation leave run concurrently with an employee’s eligibility for FMLA or WFMLA. So if the bone marrow or organ donation also satisfies the definition of a “serious health condition,” the time taken for donation leave could also be counted for purposes of the FMLA and/or WFMLA. If, however, an employee’s allotment of FMLA and/or WFMLA has been exhausted – or the leave does not constitute a “serious health condition,” the employee is still eligible for up to 6 weeks of donation leave.
The law prohibits interference with or denial of leave and it also prohibits discrimination or retaliation against any employee who exercises his/her right to take the leave. The law also follows the WFMLA process in the event an employee feels that an employer has violated the law, including the ability to bring a civil action once the administrative process has been completed.
What should employers do now? While bone marrow and organ donation leave may not be frequent events, they are likely to become more common as advances are made in the medical community. To ensure your compliance, employers should take the following steps:
- Wisconsin employers with 25 or more employees should ensure that you have posted your policy on taking time off for bone marrow or organ donation.
- Wisconsin employers with 50 or more employees must:
- incorporate a bone marrow or organ donation policy in your employee handbook, and you should update your FMLA/WFMLA forms to incorporate this leave into your policies and procedures.
- Post the required poster which is available here: https://dwd.wisconsin.gov/dwd/publications/erd/pdf/erd_18114_p.pdf.
For more information about the donor leave law or your general employment law needs, please contact Attorney Sally Piefer at (414) 226-4818 or spiefer@lindner-marsack.com or any of the other attorneys you work with here at Lindner & Marsack, S.C.