Maryland Enacts Maryland Organ and Bone Marrow Donation Leave

On May 13, the Governor of Maryland signed into law House Bill 1284, providing a leave of absence for employees serving as an organ or bone marrow donor (“Maryland Organ and Bone Marrow Donation Leave”). The leave provisions of the law go into effect October 1, 2019, while the other aspects prohibiting discrimination by insurers against donors go into effect January 1, 2020. The law contains the following provisions:

Employee Eligibility: An employee is eligible for this leave if they have been employed by the employer for at least 12 months and 1250 hours during the previous 12-month period.

Covered Employer: Employers with at least 15 employees in the state of Maryland are covered by this law.

Amount of Leave: An employee is eligible for the following amount of leave:

  • up to 60 business days in any 12-month period to serve as an organ donor; and
  • up to 30 business days in any 12-month period to serve as a bone marrow donor.

Certification: An employer can require an employee to provide written verification from a physician that the eligible employee is an organ or a bone marrow donor, and there is a medical necessity for the donation.

Job Protection: An eligible employee who returns to work after taking organ or bone marrow donation leave is entitled to be restored by an employer:

  • to the position of employment held by the eligible employee when the leave began; or
  • to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

Maintenance of Health Insurance: During any period that an employee takes leave, an employer must maintain coverage of a group health plan for the duration of the leave and in the same manner that coverage would have been provided if the eligible employee had continued in employment continuously.

Pay: While the leave is unpaid, the law does specify that if an eligible employee works on a commission basis, an employer must pay to the eligible employee during any period of leave any commission that becomes due because of work the employee performed before taking leave.

Concurrency: The law provides that the Maryland Organ and Bone Marrow Donation Leave cannot be taken concurrently with the federal Family and Medical Leave Act. Given this restriction, two recent opinion letters from the Department of Labor indicate that in many cases this leave will only be available after FMLA has exhausted, or when an employee is not FMLA-eligible.  In the DOL’s August 28, 2018 Opinion Letter, the DOL clarified that organ donation surgery and subsequent recovery can qualify as federal FMLA leave for the healthy donor, if the leave otherwise qualifies as a “serious health condition,” i.e., the employee requires an overnight stay in a hospital or continuing treatment, where the donation procedure is outpatient, but the employee is incapacitated due to the procedure and/or receiving medical treatment.  While the Opinion Letter doesn’t mention bone marrow donation, it can be inferred that the same reasoning would apply. Adding to that, the DOL’s March 14, 2019 Opinion Letter states that if an absence meets the FMLA’s requirements, an employee must designate the leave as FMLA. Putting those together, if an employee’s leave due to organ or bone marrow donation meets the definition of a serious health condition under the FMLA, an employee must designate it accordingly. The Maryland law’s prohibition against the two leaves running concurrently means that the Maryland Organ and Bone Marrow Donation Leave won’t apply until the FMLA has exhausted, or situations where the employee isn’t eligible for the FMLA, such as when the employee has not met the eligibility requirements or the leave does not qualify for a serious health condition under the FMLA (for example, in the case of a short outpatient procedure with no complications).

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