How do you calculate time off from work? Each state (and the District of Columbia) has a different approach that must be reviewed along with federal requirements. Virginia recently passed a new law expanding the type of leave available for organ donors. If you’ve had a family member or friend in need of an organ, you likely know what a harrowing experience it is. Here are three things to keep in mind about the new law, effective July 1, 2023:

1. The law applies to employers with fifty (50) or more employees and can be taken by employees that have been employed for at least 12 months, working no less than 1,250/hours. The new law affords 60 days off in a 1-year period for organ donors – with 30 days off for bone marrow donors.

2. While the law provides unpaid leave, it cannot be used concurrently with Family Medical Leave (FML). This means that an employee might be permitted to take 60 days off plus the 12 weeks provided by FML.

3. Unlike FML, Virginia’s law is available only to the individual donating an organ. That being said, employers should be mindful not to retaliate against employees that take the leave. Importantly, employees must be restored to the same position they had prior to donating an organ. The potential penalties for violation are stiff – clocking at $5,000 an offense after the second offense. Perhaps even more significantly, donor employees are likely to have rights under federal FML, therefore, providing additional exposure to employers (i.e., investigation by the federal Department of Labor and defending a federal private cause of action).

I recommend that employers update their current leave policies to ensure that they “thread the needle” on organ donation in Virginia to minimize liability. Feel free to reach out to me to discuss.