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By:  Andrew G. Scott, Esquire 

Starting October 1, 2019, all employers in Maryland with 15 or more employees will be required to provide “eligible employees” unpaid leave to donate organs or bone marrow.  The law defines “eligible employee” in the same manner as the Family Medical Leave Act (i.e., an individual who has been employed for at least 12 months and who has worked at least 1,250 hours during those 12 months), but it specifically provides that organ and bone marrow donation leave “may not be taken concurrently with any leave taken under the federal Family and Medical Leave Act.”  As long as the eligible employee requesting leave provides “written physician verification” that the employee is an organ or bone marrow donor and “there is a medical necessity for the donation of the organ or bone marrow,” the employee is entitled to up to 60 business days in any 12-month period to serve as an organ donor, and up to 30 business days in any 12-month period to serve as a bone marrow donor.  As with the FMLA, employers may not discriminate or retaliate against employees who request or take leave under the new law, and upon the employee’s return the employer must restore the employee to the same or equivalent position the employee held prior to taking donation leave.

This law is significant because, although the United States Department of Labor indicated last year in an opinion letter that organ donation surgery qualifies as a “serious health condition” under the FMLA, the matter was not entirely settled in the courts, and employers with fewer than 50 employees (and therefore not subject to the FMLA) were not required to provide such leave, provided such employers did not treat employees seeking donation leave differently than those taking time off for non-donation-related surgeries under the Americans with Disabilities Act.

The law is also notable in that it authorizes the Commissioner of Labor and Industry to investigate complaints that an employer has wrongfully denied an eligible employee leave to which the employee is entitled, and it authorizes the Attorney General to bring a civil lawsuit against the employer on behalf of the employee for injunctive relief, damages, or other appropriate relief.

Andrew Scott is a Member of PK Law and part of the firm’s Labor and Employment Group. He represents private sector employers and public schools before federal and state courts, federal and state civil rights agencies, and the Maryland Office of Administrative Hearings on a variety of matters, including employment discrimination litigation, collective bargaining, teacher and student discipline, construction and procurement, and wage and hour claims. Mr. Scott also advises clients on the design and implementation of employment agreements, employee handbooks, policies and procedures.  Mr. Scott can be reached at 410-339-6744 or ascott@pklaw.com.