Unpaid Organ Donor Leave

Update Applicable to:

All employers with 50 or more employees in the state of Virginia.

What happened?

On April 12, 2023, Governor Youngkin signed Senate Bill 1086 (SB 1086) into law, which enacted legally protected leave for organ and bone marrow donation.

What are the details?

Effective July 1, 2023, Virginia employers with at least 50 employees must provide unpaid leave to organ donors, including bone barrow donors. Employees are eligible for this leave if they were employed by their current employer for at least 12 months prior and worked at least 1,250 hours in the preceding 12 months.

To receive organ donor leave, the eligible employee must provide written physician verification to the employer that:

1. The eligible employee is an organ donor or a bone marrow donor; and
2. There is a medical necessity for the donation of the organ or bone marrow.

Employers must offer 60 business days of unpaid leave in any 12-month period for employees to serve as organ donors and 30 business days of unpaid leave in any 12-month period for employees to serve as bone marrow donors. Employees may not take organ donor leave concurrently with leave under the federal Family and Medical Leave Act.

The bill requires the employer to restore the employee’s position following the leave, to continue to provide coverage for the employee under any health benefit plan during the leave, and to pay the employee any commission earned prior to the leave. The bill prohibits the employer from taking retaliatory action against the employee for taking organ donation leave.

The state Commissioner of Labor and Industry will be responsible for enforcing the new law.

For more information, please see the links below:

Senate Bill Page (SB 1086); Printed Version

Article 1 , Article 2

What do employers need to do?

Employers should review the links provided above and should make adjustments to their leave policies to ensure they are in compliance with the new law by July 1^st.

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Social Security numbers cannot be used for ID purposes

A newly enacted law, Senate Bill 1040, prohibits employers’ use of employees’ Social Security numbers or any derivative as employee identification numbers, or on an employee identification or access card, badge, or the like. The law appears to have no private right of action. Instead, the law will be enforced by the Commissioner of the Virginia Department of Labor and Industry. Employers may be subject to civil penalties of up to $100 per violation. The law also authorizes the Commissioner to seek injunctive relief for the law’s enforcement. (Bill Page: Link)

Phase-out of subminimum wage

House Bill 1924 amends the Virginia Minimum Wage Act to limit the use of the subminimum wage under an exemption that is comparable to Section 14(c) of the federal Fair Labor Standards Act. The federal law authorizes the U.S. Department of Labor to issue permits for the employment of employees with disabilities at a rate below the minimum wage. Effective July 1, 2023, the subminimum wage may be paid only to Virginia employees who were paid a subminimum wage by a federal Section 14(c) certificate holder before that date (July 1). Those employees may continue to be paid the subminimum wage through July 1, 2030. Effective July 1, 2030, the provision of the Virginia law permitting the subminimum wage under the certificates will sunset. (Bill Page: Link)

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