To give or to receive in Pennsylvania: Job protections for organ or tissue donation

• What: Living Donor Protection Act
• Who: Pennsylvania employers subject to federal FMLA obligations
• Who else: Pennsylvania employees who meet the same eligibility requirements as the federal FMLA
• Why: Job protected absences due to surgery prep and recovery related to organ or tissue donation
• When: If the eligible employee is the donor or recipient of the organ or tissue
• How: This is where it gets tricky. Instead of creating a clearly defined, independent bucket of leave for these reasons, the Living Donor Protection Act states provided leave is “the same leave to which an eligible employee is entitled under the [federal] FMLA, when the eligible employee is unable to work because of a serious health condition or to care for the eligible employee’s spouse, child or parent with a serious medical condition.” 

1. State Lawmakers Cannot Amend the Federal FMLA’s Qualifying Leave Reasons

Pennsylvania lawmakers cannot amend the qualifying leave reasons under the federal FMLA by enacting a state law. While it might be convenient for an employer to simply deem all leave covered by the Living Donor Protection Act as FMLA leave and continue with business as usual, Pennsylvania donation leave should be treated as an independent state leave that can run concurrently with an employee’s FMLA entitlement but won’t necessarily decrement it if it doesn’t qualify.

2. Applicability of the Living Donor Protection Act and FMLA Should Be Assessed Separately

The Living Donor Protection Act adopts the FMLA standards for employer coverage and employee eligibility. The probability for the federal FMLA and state leave running concurrently is high. That said, it is possible for an absence to be covered by the Living Donor Protection Act but not the FMLA.

How can we be sure?

Although nothing is set in stone, it’s a solid clue that the Pennsylvania legislature felt the need to pass this law at all, as a gap filler to expand upon the FMLA’s existing protections. Our second clue is a 2018 DOL opinion letter which describes the circumstances under which organ donation by a healthy donor could qualify as an impairment or physical condition that is a serious health condition under the FMLA. As a result, employers and leave administrators should evaluate the laws’ applicability to a particular absence separately.

3. FMLA Usage May Impact Availability of Pennsylvania Donation Leave

The million-dollar question is – Does the employee have a full 12-week entitlement of Pennsylvania donation leave that may run concurrently with, but is not dependent upon, an available balance of FMLA leave? Or must the employee have FMLA leave time available to take Pennsylvania donation leave? 

We do not have clear direction whether an eligible employee’s FMLA usage (for any qualifying purpose) reduces the amount of Pennsylvania donation leave the employee would otherwise have had available.

Employers and third-party administrators should consult with HR professionals and/or employment attorneys to develop a compliant and low risk strategy for administering Pennsylvania donation leave. Also, stay tuned for possible future Guardian blogs on the subject.

We expect to see interpretive regulations or agency guidance soon to guide employers and TPAs who are grappling with its administration. While monitoring for such guidance, Guardian will also be evaluating whether we can add this leave to our Absence offering(s).