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On November 5, 2018, Governor Cuomo signed into law the Living Donor Protection Act of 2018, Senate Bill 2496. The law, which amends the New York Insurance law and Paid Family Leave to extend protections to organ and tissue donors, goes into effect Sunday, February 3, 2019.

New York Paid Family Leave: The bill amends the definition of a serious health condition under the NY PFL law to include “transplantation preparation and recovery from surgery related to organ or tissue donation.” NY PFL does not cover an employee’s own serious health condition, but rather allows an employee to take paid leave to care for a family member with a serious health condition. If a family member opts to act as an organ or tissue donor, NY PFL now clarifies that an employer is required to cover transplantation preparation and recovery from surgery related to organ or tissue donation as a serious health condition.

Note: This is consistent with the Department of Labor’s recent Opinion Letter interpreting the Family and Medical Leave Act where it stated that an organ donation can qualify as a serious health condition when it meets definition of a serious health condition. As stated in the Opinion Letter, “an organ donation would qualify as a serious medical condition whenever it results in an overnight stay in a hospital. Of course, that is not the only means for organ donation to involve ‘inpatient care’ or ‘continuing treatment.’ Organ-donation surgery, however, commonly requires overnight hospitalization…and that alone suffices for the surgery and the post-surgery recovery to qualify as a serious health condition.”

See blog: https://www.reedgroup.com/2018/08/29/department-of-labor-opinion/

See Opinion Letter: https://www.dol.gov/whd/opinion/FMLA/2018/2018_08_28_2A_FMLA.pdf

Insurance Law: The bill also prohibits New York insurers from declining to provide or limit coverage of an insured under any life or accident and health insurance policy or otherwise discriminating in the premium rating, offering, issuance, cancellation, amount of coverage or any other condition, based solely upon the status of an insured as a living organ or tissue donor and without additional actuarial risks. An insurer also cannot preclude an insured from donating all or part of an organ or tissue as a condition or receiving or continuing to receive life or accident and health insurance coverage.

What Employers Must Do Now

New York employers are responsible for compliance with this law as of February 3, 2019. Employers should:

  • Update any employee handbooks regarding organ donation and New York Paid Family Leave;
  • Train appropriate personnel (Human Resources, Benefits, supervisors, managers etc.) on the law’s requirements and employee’s rights to use New York Paid Family leave.

What ReedGroup is Doing

This will not have a significant impact ReedGroup’s administration of New York Paid Family Leave, as ReedGroup’s best practice has been to consider surgery for organ and tissue donation and related preparation to be a serious health condition based on the existing definitions under the law. However, ReedGroup will review existing configurations and trainings to ensure that qualifying absences that meet the amended definition of a serious health condition are appropriately administered.

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