Back in 2010, I wrote a simple blog post about how organ donors were protected under Connecticut’s FMLA law. In it, I recount how my father — 25 years prior at that time — donated a kidney to his brother (my uncle). At the time, I noted that both were well.
On Sunday, October 28, 2018, my uncle passed away after a short illness. Dr. Allen Schwartz was retired as the Deputy Director of Policy and Enterprise solutions at NYS Office for People with Developmental Disabilities and recently served as a Senior Policy and Research Analyst at Westchester Institute for Human Development. He leaves behind his wonderful wife, Andrea, and two adult children. Allen was blessed to contribute so much to society in the 33 years since that organ transplant and he will be sorely missed.
25 years ago nearly to the day, my father donated one of his kidneys to his brother.
What have you done today? Have you done everything you could? Could you have done better?
They may seem like unfair questions after the first sentence.
But tonight is the start of Yom Kippur – a Day of Atonement in the Jewish religion and one of the holiest days of the year. And as part of the services tonight and tomorrow, Jews around the world will be asking tough questions of themselves all with the goal of being a better person next year.
And so, to honor my father and his heroism and provide education and insights in the employment law context in the way I know best, today’s post is all about organ donation and what employers need to know. My goal is to begin a discussion this important issue in Connecticut.
FMLA is typically thought of in the medical context or childbirth/adoption process. But Connecticut’s FMLA statute actually provides protection for those employees who become organ or bone marrow donors.
Donors are to be provided with the same amount of leave (16 weeks over a 2 year period) that, say, new mothers and fathers are accorded.
This is still a relatively new law — having been passed just six years ago fairly quietly.
If you’re an employer, what does this mean? Well, for one, your FMLA policies should be updated to let your employees know that they can be a living organ donor — and still have their job protected.
Employers can also update their FMLA forms to provide for organ donation is a category to check off. Many employers tend to use the Connecticut DOL’s forms (at the end of the regulations) — assuming that they are the most complete forms out there. But even those forms do not include language about being an organ donor. (Don’t look to the US Department of Labor either; their forms just follow federal law, not state law.)
Enterprising employers might think to seek out the Connecticut DOL regulations for some guidance. But those employers would also be out of luck. Those regulations haven’t been recently updated and say nothing about how employers should handle such requests. (Authors note: Still not updated in 2018!) Indeed, if you just read the regulations, you might even think that organ donors are not protected because language about “organ donors” isn’t even there. (Conn. Regs. Sec. 31-51qq-7 is a perfect example.)
Perhaps a representative from the Department of Labor can take the opportunity to update their website on this category and provide additional information, in the absence of formal regulations. Without that, organ donors may be left wondering if their jobs are protected if they choose to donate.
In the meantime, employers are on their own to take steps to educate their workforce about the protections offered under Connecticut’s FMLA for organ donation. Employers should be sure their forms and policies are up-to-date and remove any barriers to organ donation that their employees might think exist.
Credit should be extended to the many employers that have done a lot in this area, including some local companies (Aetna and Bank of America). The Workplace Partnership for Life initiative is truly a win-win campaign in which everyone can play a significant role in recruiting potential organ, tissue, marrow, and blood donors. Thousands of U.S. corporations, organizations, and associations are working to create a “donation friendly America” by joining the Workplace Partnership for Life.
(And, of course, if you haven’t become an organ donor, do it today. You can download the form from the DMV off their website and mail it in. Or when you renew your license, you can become a donor then. The DMV has a FAQ about the process on their website as well.)
And what of my father and his brother? They’re both living healthy and productive lives. And we continue to celebrate many holidays together.
If through this post and actions by employers, we can ensure that another family has that same benefit, I think we can say that today was at least a pretty good day and we did what we could. Think about the simple changes that your workplace can make today.