New Virginia Law Requiring Unpaid Organ Donor Leave

On April 12, 2023, Virginia Governor Glenn Youngkin signed a law requiring certain Virginia employers to provide unpaid organ and bone marrow donor leave (“VA Donor Leave”) for employees. VA Donor Leave goes into effect on July 1, 2023. Virginia now joins the rank of many other states requiring employers to provide organ and bone marrow donor leave to employees.

Covered Employers

Virginia employers with at least 50 employees are covered under VA Donor Leave, including state employers.

Eligible Employees

Employees are eligible under VA Donor Leave if they have worked for their current employer for at least a 12-month period and at least 1,250 hours during the previous 12 months.

VA Donor Leave Details

Under VA Donor Leave, "organ donation leave" is defined as leave of an eligible employee for the purpose of donating one or more of such employee's human organs, including bone marrow, to be medically transplanted into the body of another individual.

Covered employers must provide eligible employees with VA Donor Leave for the following organ donation purposes:

1. Organ donation: up to 60 business days of leave in any 12-month period to serve as an organ donor.
2. Bone marrow donation: up to 30 business days of leave in any 12-month period to serve as a bone marrow donor.

Employers may require eligible employees to provide written physician verification of medical necessity for the donation of an organ or bone marrow by the eligible employee to take VA Donor Leave.

Employers are permitted to provide more generous leave policies for employee organ donation than required under VA Donor Leave.

Further, if an eligible employee works on a commission basis, any applicable commissions due to that employee for work completed before taking VA Donor Leave must be paid to them during their leave.

Intersection with FMLA

VA Donor Leave is separate from an employee’s rights under the federal Family and Medical Leave Act (FMLA) within the same year. As a result, employees may not take VA Donor Leave concurrently with FMLA leave.

Health Plan Coverage Continuation

Employers must maintain an eligible employee’s health plan coverage for the duration of VA Donor Leave and in the same manner that coverage would have been provided if the eligible employee has not taken VA Donor Leave.

Job Restoration

Employers are prohibited from considering any period of time taken under VA Donor Leave to be a break in continuous service for purposes of an eligible employee’s right to salary adjustments, sick leave, vacation, paid time off, annual leave, seniority, or other employee benefits.

Employers must restore eligible employees taking VA Donor Leave to the same or equivalent position with similar employment benefits, pay, and other terms and conditions of employment.

Employer may not discharge, discipline, threaten, discriminate against, or penalize an employee, or take other retaliatory action against an eligible employee for requesting or exercising their rights to VA Donor Leave.

Enforcement

VA Donor Leave is enforced by the Virginia Commissioner of Labor, who will investigate complaints of violations.

Individuals may file a confidential complaint with the Commissioner within one year of the date the individual knew or should have known of the alleged violation.

Employers who knowingly violate VA Donor Lave may be subject to civil penalties of up to $1,000 for the first violation, up to $2,500 for the second violation in certain circumstances, and up to $5,000 for each successive

Employer Next Steps

Employers covered under VA Donor Leave should take the following steps in advance of the July 1, 2023 effective date:

1. Update employee handbooks and leave policies/practices to comply with VA Donor Leave.
2. Train managers and supervisors on the requirements of VA Donor Leave.
3. Inform employees of VA Donor Leave rights and protections. The VA Commissioner of Labor will likely issue a VA Donor Leave sample notice for employers to post and/or distribute to employees.

Reach out to your Risk Strategies representative with questions or contact us at benefits@risk-strategies.com.