Organ and Bone Marrow Donor Leave in California: Employer Duties

Thirty business days of paid leave, plus 30 more unpaid, is what a California employer with 15 or more employees owes an employee who donates an organ. Bone marrow donors get up to five paid business days. Labor Code section 1510 also requires continued health coverage during the paid leave and bars counting the leave as a break in service. When a donor is disciplined or let go around the time of surgery, the timing and the reason for the decision carry the defense.

Which employers does the law cover?

Private employers with 15 or more employees.

The Michelle Maykin Memorial Donation Protection Act, at Labor Code sections 1508 through 1513, defines “Employer” as “any person, partnership, corporation, association, or other business entity that employs 15 or more employees.” That threshold is lower than the 25-employee threshold for some other California leave statutes. The Act took effect January 1, 2011, and section 1510 was last amended effective January 1, 2020.

How much leave does an employee get?

Up to 30 paid and 30 unpaid business days for an organ donation, and up to five paid business days for bone marrow.

Section 1510(a) requires a paid leave “not exceeding 30 business days in a one-year period” for an organ donor and “not exceeding five business days in a one-year period” for a bone marrow donor. Subdivision (b) adds “an additional unpaid leave of absence, not exceeding 30 business days in a one-year period” for organ donors. The one-year period runs from the date the employee’s leave begins and covers 12 consecutive months.

The leave can be taken in one or more periods, but the totals can’t exceed those caps. The statute also provides that donor leave “shall not be taken concurrently with any leave taken pursuant to” the FMLA or CFRA. An employee who donates an organ and then needs family or medical leave for another reason may be entitled to both, one after the other.

What can the employer require before granting leave?

Written verification, and in some cases use of accrued paid time off first.

To qualify, section 1510(c) requires the employee to “provide written verification to the employer that the employee is an organ or bone marrow donor and that there is a medical necessity for the donation.” An employer may ask for that verification as a condition of the leave, and it should ask the same way every time.

Under subdivision (g), an employer may require the employee, as a condition of the initial receipt of donor leave, to use up to five days of earned but unused sick leave, vacation, or paid time off for bone marrow donation, and up to two weeks for organ donation, unless a collective bargaining agreement provides otherwise. An employer that wants to use this option should put it in a written policy before a request arrives, so the requirement doesn’t look like a response to a particular employee.

What happens when the employee returns?

The employee is entitled to the same or an equivalent position, with limited exceptions.

Section 1511 requires the employer, when the leave ends, to restore the employee “to the position held by him or her when the leave began or to a position with equivalent seniority status, employee benefits, pay, and other terms and conditions of employment.” It allows the employer to “decline to restore an employee as required in this section because of conditions unrelated to the exercise of rights under this part by the employee.” A layoff that would have happened anyway is one example. The employer has to be able to prove it.

During the paid leave, section 1510(d) requires the employer to “maintain and pay for coverage under a group health plan” as if the employee were working. The same subdivision says the absence isn’t a break in continuous service for salary adjustments, sick leave, vacation, paid time off, annual leave, or seniority.

What claims can an employee bring?

A civil action under the Act, and often related FEHA claims.

Section 1512 bars interfering with the exercise of these rights and bars discharging, disciplining, or otherwise discriminating against an employee who exercises a right under the Act or opposes a practice it makes unlawful. Section 1513 lets an employee bring a civil action in superior court, and the court “may order any equitable relief necessary and appropriate to redress the violation or to enforce this part.”

The published decision in Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635 shows how donor leave disputes expand. A branch manager told the employer at hiring about a plan to donate a kidney to a sibling, then asked for paid leave under the new Act. The employer terminated the manager two days before the Act took effect. The court held that the Act didn’t apply retroactively, so the claim under it failed. But at the pleading stage, the court allowed a FEHA associational disability claim to proceed, based on the sibling’s disability, along with a related wrongful termination claim. The court cautioned that its holding wasn’t “a siren song for plaintiffs” and that relationships with a person with a disability “do not, by themselves, give rise to a claim of discrimination.”

One part of Rope is no longer the law. The court held that a request for accommodation, by itself, wasn’t protected activity for a FEHA retaliation claim. The Legislature later amended FEHA, and Government Code section 12940 now bars retaliation for requesting a disability or religious accommodation “regardless of whether the request was granted.” The firm’s post on associational disability discrimination covers the related claim in more detail.

Steps to take after a donor leave dispute

1. Preserve the leave request, the donor’s written verification, leave and payroll records, benefits records, performance documents, and emails about the employee, under a litigation hold once a claim arrives.
2. Calendar the response date on the demand, CRD complaint, or summons, and check for an EPLI policy with notice requirements and any arbitration agreement the employee signed.
3. Identify who received the leave request and who made any discipline or termination decision, and stop any further action that could look like retaliation.
4. Pull the documents the defense depends on: the headcount for coverage, what leave was granted and paid, whether coverage continued, and when any adverse decision was first discussed.
5. Talk to a lawyer before responding, contacting the employee or their lawyer, or offering anything to settle.

Donor leave disputes often add FEHA claims to a Labor Code claim, and employment lawsuit defense for California employers starts with the timeline of the request and the decision.

FAQ

Can an employer require an employee to use vacation before paid donor leave?

Yes, within limits. Under section 1510(g), the employer may require use of up to five days of earned but unused sick leave, vacation, or paid time off for a bone marrow donation and up to two weeks for an organ donation, as a condition of the initial receipt of donor leave. A collective bargaining agreement can change that. The requirement is easier to defend when it’s in a written policy applied to everyone.

Does donor leave count against an employee’s FMLA or CFRA leave?

No. Section 1510(h) says donor leave “shall not be taken concurrently” with FMLA or CFRA leave. That means an employer can’t designate the donor leave as family or medical leave and reduce the employee’s separate entitlement. An employee who needs more time after donor leave runs out may qualify for CFRA or FMLA leave on its own terms.

Does the law cover an employee who donates to a family member?

Yes. Section 1510 covers donation of the employee’s organ or bone marrow “to another person,” without limiting who the recipient is. When the recipient is a family member with a disability, FEHA’s associational disability protections may also apply, as Rope illustrates. An employer evaluating a donor’s request should consider both statutes.

What if the employee’s position is eliminated during the leave?

Section 1511 allows an employer to decline reinstatement “because of conditions unrelated to the exercise of rights under this part.” A restructuring decided before the leave, applied to others in the same role, and documented at the time is the strongest version of that defense. A decision made during the leave, affecting only the donor, invites a retaliation claim.

If an employee challenges a decision tied to donor leave

If your company has received a demand, CRD complaint, or lawsuit alleging that it denied or interfered with organ or bone marrow donor leave, the leave records and the timing of any adverse decision usually decide how strong the claim is. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including donor leave and related reinstatement claims. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.

Sources

Labor Code sections 1509, 1510, 1511, 1512, and 1513; Government Code section 12940; Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635.

This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.