Protected Leave Available to Employees for Marrow or Organ Donation

Under the Wisconsin Family and Medical Leave Act (“FMLA”), protected leave is typically only available to those with a serious health condition, those that are needed to care for a family member with a serious health condition or for the birth or adoption of a child.  A new law recently passed in Wisconsin opens up similar protections for employees who serve as marrow or organ donors but that would not otherwise qualify for FMLA protected leave.

Earlier this year, 2015 Wisconsin Act 345 was passed and enacted by the state legislature.  Act 345 creates an entirely new law (Section 103.11 of the Wisconsin Statutes) that grants employees who work for an employer with 50 or more employees entirely new rights.  While it incorporates various provisions associated with FMLA leave under the Wisconsin Fair Employment Act into its own protections and enforcement, it is a separate form of protected leave. 

Under the new law, an employee that has been employed by the same employer for more than 52 consecutive weeks and who worked for the employer for at least 1,000 hours during the preceding 52-week period (an average of about 20 hours per week) is entitled to bone marrow or organ donation leave.  This includes up to 6 weeks of unpaid leave in a calendar year and entitles the employee to return to the same position, or an equivalent position, following the leave.  The employee requesting the leave is required to provide written verification that the employee is to serve as a bone marrow or organ donor (likely in the form of a medical certification from a health care provider) and is only entitled to enough leave for the employee to undergo the donation procedure and to recover from the procedure.

Employers covered by this new law may wish to update their leave policies provided in any handbooks or manuals to ensure this new form of leave is appropriately addressed.  Further, of course, employers should be aware that this new type of protected leave exists and should not reject out of hand a request for leave to serve as a bone marrow or organ donor simply because the donor does not have a serious health condition of their own.

Finally, it is interesting to note that this is one of the first types of laws that grant FMLA-like protections to someone who would not otherwise qualify for such benefits.  Few would argue that this new type of leave is not beneficial to society in general and a good idea.  However, there is always a part of me that wonders: “what is next?”  One must wonder whether this is the first slippery step in granting FMLA equivalent leave for various other reasons or whether this is simply a narrow addition to typical FMLA qualifying leave.

If you have questions about this article, please contact an attorney at Mallery & Zimmerman.