Beginning July 1, 2023, Virginia Law will include a new provision for employee leave for the purpose of organ or bone marrow donation. Pending Va. Code Section 40.1-33.8 allows for up to 60 days of unpaid business leave for employees for the purpose of organ donation and up to 30 days of unpaid leave for the purpose of bone marrow donation. However, not every employee will qualify. The new statute is structured similarly to the qualifying elements of FMLA leave. An eligible employee must have been employed for 12 months and worked at least 1,250 hours during the previous 12 months. Also, qualifying employers only include those with 50 or more employees.
Like the FMLA, during qualifying periods of leave, the employer must consider the employee as continuously employed and must reinstate the employee to the same or equivalent position upon their timely return. Retaliation is specifically prohibited for exercising these rights, but the statute does not contain an express provision for an individual cause of action. As structured, violations can be asserted to the Commissioner or the Virginia Department of Labor and Industry within 1 year. VDOLI is then responsible for investigating the claim and if warranted, issuing a notice of any founded violation, which primarily would include civil penalties.
The Seventh Circuit recently addressed the interplay of FMLA and “light duty” restrictions in James v. Hyatt Regency Chicago (7th Cir., 2013). In James, the plaintiff suffered from a visual condition and subsequent eye injury that prompted surgery and an associated request for Family Medical Leave (FMLA). After his 12 weeks of FMLA expired, the employee requested to return to work in a light duty capacity that would eliminate some essential functions of his position. When the employer could not accommodate his request, the employee nonetheless remained on leave based upon the terms of his union’s collective bargaining agreement. Ultimately, the employee returned to work but still sued under the FMLA, contending that the employer failed to promptly reinstate him in accordance with his physician’s restrictions.
At the conclusion of an FMLA period, the FMLA requires that an employer reinstate the employee to his prior position or “an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” The Seventh Circuit affirmed that the FMLA does not require an employer to return an employee to his position if that employee cannot perform an essential function of the job. 29 C.F.R. § 825.214(b). As otherwise stated, there is no such thing as obligatory light duty under the FMLA. (Note, other laws such as workers’ compensation and ADA statutes may impose different light duty obligations depending on the facts of each individual case.)