Organ Donation Leave Laws in Texas

The Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, provides eligible employees at covered employers with 12 weeks of unpaid, job-protected leave in a 12-month period for qualifying reasons, including donation of an organ or bone marrow. FMLA covers employers with 50 or more employees within 75 miles. To be eligible, an employee must have worked there for at least 12 months and logged 1,250 hours in the past 12 months.

The leave is unpaid unless the employer provides paid leave or the employee uses accrued paid time off. During leave, the employer must maintain the employee's health insurance under the same terms as if the employee were actively working. The employer cannot retaliate against an employee for taking FMLA-protected leave. The Department of Labor (DOL) enforces FMLA through its Wage and Hour Division.

FMLA applies nationwide and provides a baseline federal protection that states may supplement with stronger protections.

Texas Labor Code § 52.055 establishes a state-level organ and bone marrow donation leave right that operates independently of federal FMLA, though the two may overlap. Texas requires employers with 50 or more employees to allow employees reasonable unpaid leave to serve as an organ or bone marrow donor. This is a mandatory unpaid leave entitlement; employers cannot require employees to use accrued paid leave or vacation time for this purpose.

The employee must provide written notice to the employer and present medical certification that the leave is necessary for the organ or bone marrow donation. The law does not specify how much advance notice is required, but medical necessity generally requires reasonable cooperation from the employee. Texas does not cap the length of leave; instead, it requires "reasonable" leave, which varies based on the nature and complexity of the donation procedure.

Texas Labor Code § 52.061 further protects employees by prohibiting employers from terminating, suspending, or disciplining an employee because the employee is a bone marrow or organ donor or because the employee took donation leave. This protection extends to prospective donors as well—an employer cannot retaliate because an employee intends to donate.

Unlike federal FMLA, Texas law does not require the employee to have worked for the employer for a minimum period or to have logged a specific number of hours. This means even relatively new employees at covered employers may be entitled to organ donation leave under state law. However, employers with fewer than 50 employees are not covered by the Texas statute, though federal FMLA may still apply if other eligibility requirements are met.

The Texas Attorney General's office and the Texas Workforce Commission may enforce these provisions, though private lawsuits by employees are also available. Remedies include reinstatement, back pay, damages for emotional distress, and attorney's fees.

Texas Labor Code § 52.055 applies only to employers with 50 or more employees; smaller employers are not statutorily required to provide organ donation leave under Texas law. However, employers with 50+ employees within 75 miles of the employee may be covered by federal FMLA, which has its own 50-employee threshold and eligibility requirements.

The statute does not require paid leave; employers may offer donation leave as unpaid time only. If an employee's donation leave is not medically necessary (for example, if the employee is not actually undergoing a donation procedure), the employer may deny the leave request.

Employers have a common-law right to require reasonable medical certification demonstrating that the employee is a qualifying donor and that the absence is necessary for the procedure. If medical certification is not provided or is incomplete, the employer may delay or deny leave pending receipt of adequate documentation.

The "reasonable leave" standard may be challenged if the employee requests an unreasonably long absence or if the timing of the leave creates undue hardship for the employer. However, Texas courts have generally interpreted retaliation protections broadly, so employers cannot use operational hardship as a pretext for discrimination.

At-will employment principles still apply outside the context of organ donation leave. Once leave is complete and the employee returns to work, the employer may discipline or terminate the employee for unrelated performance or conduct issues. However, the employer cannot use the donation or donation leave as a stated or pretextual reason for adverse action.

Union employees covered by collective bargaining agreements may have additional or different rights negotiated into their contract, which would supersede statutory minimums.

**Step 1: Document Everything.** Keep detailed records including: (1) dates you requested organ donation leave, method of request (email, in-person), and to whom; (2) any written responses from your employer approving, denying, or conditioning the leave; (3) medical documentation provided to the employer (do not include detailed medical records, but keep copies of certification letters stating you are a qualified organ/bone marrow donor and the procedure date); (4) dates the leave was actually taken or denied; (5) any adverse employment actions following your donation or leave request (termination, demotion, reduction in hours, negative performance review); (6) witness names and statements if coworkers heard about your donation or the employer's response; (7) emails or messages referencing your donation status or leave request.

**Step 2: Internal Complaint Process.** Before filing externally, send a written complaint to your employer's Human Resources department or management if you believe a violation has occurred. Clearly state: (1) the date you requested leave to donate an organ or bone marrow; (2) the reason the request was denied or how the employer retaliated (if applicable); (3) reference Texas Labor Code § 52.055 or § 52.061; (4) request written explanation of the denial or adverse action; (5) request correction (reinstatement if terminated, back pay, rescission of discipline). Keep a copy for your records and send via email or certified mail to create a paper trail. Internal complaints matter because they demonstrate good faith and sometimes prompt employers to correct violations before litigation.

**Step 3: File a Charge with the Texas Workforce Commission (TWC) or EEOC.** You have two options: (a) Texas: File a complaint with the TWC Labor Standards unit, which investigates violations of Texas Labor Code provisions, or (b) Federal: If your employer has 50+ employees within 75 miles, file with the U.S. EEOC if the violation also involves federal law (FMLA or retaliation under a federal statute). For state-only complaints, use the TWC. Go to www.twc.texas.gov, navigate to "Labor Standards" or "File a Complaint," and complete the form. You must provide: employer name and address, your name and contact information, date of the violation, description of what happened, names of witnesses, and copies of relevant documents. There is no strict filing deadline under Texas statute for organ donation leave violations, but timely filing (within 2-3 months) is prudent to preserve evidence and show diligence. The TWC may investigate at no cost to you. Contact TWC Labor Standards at 1-888-452-4778.

**Step 4: Investigation Process.** After you file with TWC, an investigator is assigned to your case. The investigator will: (1) contact your employer and request records of your leave request, personnel file, and attendance records; (2) interview you and your employer to understand both sides; (3) interview identified witnesses; (4) review applicable law and determine whether a violation occurred. This process typically takes 30-90 days. You will be contacted by the investigator with updates. The employer may respond that the leave was denied for a legitimate business reason unrelated to the donation, or that no adverse action was taken. The investigator will assess credibility and evidence. If the TWC finds a violation, it may order the employer to cease and desist, provide back pay, restore benefits, or reinstate you. If no violation is found, you receive a closure letter explaining the reasoning. Either party may appeal.

**Step 5: Consult an Attorney.** If TWC finds no violation but you believe the investigation was flawed, or if you need faster relief than the TWC process provides, consult an employment law attorney licensed in Texas. Employment attorneys can file a private lawsuit in district court for violations of Texas Labor Code § 52.055 or § 52.061, seek damages for lost wages, emotional distress, and punitive damages in cases of willful retaliation. Many employment lawyers work on contingency (no upfront cost; they take a percentage of any recovery). Contact the Texas Bar Association's lawyer referral service at www.texasbar.com or call 1-800-252-9690. An attorney can also file with the EEOC simultaneously if federal claims apply, preserving all remedies.