DOL Issues Two New FMLA Opinion Letters

Organ Donation Surgery Can Qualify as Serious Health Condition Under FMLA

The DOL considered whether an employee who donates an organ can qualify for leave under the Family Medical Leave Act, even when the donor is in good health before the donation and chooses to donate the organ solely to improve someone else’s health. Additionally, the DOL addressed whether an organ donor can use FMLA leave for post-operative treatment.

The DOL concluded that organ donation can qualify as a serious health condition under the FMLA because organ-donation surgery commonly requires overnight hospitalization, though that is not the only means for organ donation to qualify as a serious health condition.

No-Fault Attendance Policies May Not Violate FMLA

The DOL addressed whether an employer’s attendance policy violates the FMLA where the policy effectively freezes, throughout the duration of an employee’s FMLA leave, the number of attendance points that the employee accrued prior to taking his or her leave. The DOL found that because an employee neither loses a benefit that accrued prior to taking the leave nor accrued any additional benefit to which he or she would not otherwise be entitled, the policy does not violate the FMLA, as long as employees on equivalent types of leave receive the same treatment. If the employer, however, counts equivalent types of leave as “active service” under the no-fault attendance policy—meaning the employer counts such leave toward the 12 months necessary to remove points—then the employer may be unlawfully discriminating against employees who take FMLA leave. 29 C.F.R. § 825.220(c) (requiring that employees who take FMLA leave accrue the same benefits as employees who take equivalent non-FMLA leave).

Source: Littler – JDSupra

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