Many Wisconsin employers are beginning to discover that they are subject to new employment rules regarding employees who are involved in bone marrow and organ donation. As of July 1, 2016, those employing 50 or more 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.
Similar to the State’s Family and Medical Leave Act
In many respects, the new rules are quite similar to Wisconsin’s Family and Medical Leave Act (WFMLA). For example, as is the case with the WFMLA:
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- An employee is eligible for leave to donate bone marrow or organs when the employee has worked for more than 52 consecutive weeks and for at least 1,000 hours during that 52-week period.
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- Employees are permitted to utilize paid or unpaid time provided by the employer during the approved leave.
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- Health insurance coverage must be continued during the approved leave.
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- The employee must give reasonable advance notice of his or her need to take bone marrow and organ donation leave, and must make reasonable efforts to schedule the leave to avoid unduly disrupting the employer’s operation. This provision is, of course, subject to the respective health care provider’s approval.
Certification of Medical Need
The rules anticipate that the employee desiring the leave will provide the employer with appropriate certification of medical need from a qualified medical care provider. In most instances, the certification should include a statement certifying:
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- That the relevant donee has a serious health condition that requires a bone marrow or organ transplant
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- That the employee is eligible to make the donation and has agreed to serve as the donor
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- The time frame required for the employee to recover from the donation procedure
The employee does not automatically qualify for the full term of the bone marrow or organ transplant leave period; he or she may take leave only for the time it takes to make the donation and recover.
Restoration to Former Position Required
Following the bone marrow or organ transplant leave period, the employer must restore the employee to the position previously held or, if that position isn’t available, to an equivalent position. Failure to comply can result in the imposition of penalties, including the following:
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- An order requiring the grant of the requested leave
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- Reinstatement
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- As many as two years of back pay
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- Reasonable attorneys’ fees
Posting Notices
The Wisconsin Department of Workforce Development has crafted a specialized notice that must be prominently posted at the employer’s workplace. As is indicated in the approved notice form, employers with 25 to 49 employees must also give their employees notice describing their own applicable policies regarding bone marrow and organ donation.
Milwaukee Business, Employment, and Commercial Litigation Attorneys
In light of these new employment rules, many Wisconsin employers would be served by a thorough review of all employment policies, particularly regarding those entailing employee leaves. The rules can be intricate; prudent businesses usually retain the assistance of a solid, experienced business litigation firm to assist in the review. The Milwaukee business litigation firm of Kerkman & Dunn has more than 50 years of combined legal experience representing business owners in Wisconsin in all sorts of matters, particularly those that involve litigation. We have strong experience with employment issues and understand how Wisconsin’s employment leave rules can affect your business. Our firm has big firm talent and provides small firm attention. Call us at 414-278-7000 or complete our online contact form.
