August 17, 2016 Client Alert

Wisconsin Introduces Bone Marrow and Organ Donation Leave

Effective July 1, 2016, Wisconsin employers who employ at least 50 employees on a “permanent basis” must provide eligible employees up to six weeks of unpaid leave in a 12-month period for bone marrow and organ donation leave. A copy of the law can be found here: Wis. Stat. § 103.11.

The new law is similar to Wisconsin’s Family and Medical Leave Act (WFMLA) in that an employee is eligible for leave to donate bone marrow and/or organs when he or she has worked for the employer for more than 52 consecutive weeks and for at least 1,000 hours during that period. Employees may elect to substitute paid or unpaid time provided by the employer during approved leave. Health insurance coverage must be continued during the approved leave.

Employees must provide reasonable and practicable advance notice of the need to take bone marrow and organ donation leave. The law requires the employee to make reasonable efforts to schedule the leave to avoid unduly disrupting the employer’s operation, albeit subject to the health care provider’s approval.

Employers may (and should) obtain a certification from a health care provider of the employee’s need to take the leave. The certification may include the following: (1) the donee has a serious health condition that necessitates a bone marrow or organ transplant; (2) the employee is eligible and has agreed to serve as the donor; and (3) the amount of time needed for the employee to recover from the donation procedure. The amount of covered leave is limited to the time it takes for the donation procedure and the employee’s recovery.

When returning from leave, the employee must be restored to his or her previous position or, if unavailable, an equivalent position. Similar to the WFMLA claims, employees may pursue a claim with the Wisconsin Department of Workforce Development, Equal Rights Division within 30 days of the alleged violation. Remedies that may be awarded to complainants include providing the requested leave, reinstatement, up to two years of back pay, and reasonable attorneys’ fees.

While the new law shares many similarities to the WFMLA, the bone marrow and organ donation leave law does not define a “12-month period,” while the WFMLA regulations define a 12-month period as a calendar year. It is unclear whether the Department of Workforce Development will issue any further regulations or guidance on this issue.

Covered employers must post a notice of employee’s rights under the law in a conspicuous place. Employers may also consider drafting a written leave policy pertaining to this new law, as well as updating certification form(s). Employers with 25 to 49 employees must also give employees notice describing their own applicable policies regarding bone marrow and organ donation.

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