Is Organ Donation Covered Under the Family and Medical Leave Act (FMLA)?

This week, the United States Department of Labor (DOL) issued two opinion letters providing guidance under the federal Family and Medical Leave Act (FMLA). In one opinion letter, the DOL verifies that organ donation surgery and subsequent recovery can qualify as federal Family and Medical Leave Act (FMLA) leave for the otherwise healthy person who is the donor.

In its opinion, the DOL recognized that when an employee who is healthy undergoes surgery to donate his or her organ, the surgery and its recovery can fit the FMLA’s definition of a serious health condition, namely the language covering:

  • an “overnight stay” in a hospital and associated recovery time if the organ donation surgery requires an overnight hospital stay; or
  • “continuing treatment” where the donation procedure is outpatient, but the employee is incapacitated due to the procedure and/or receiving medical treatment.

Many states have stand-alone leave laws that provide job-protected time off for organ, bone marrow, and blood donation. However, in many instances, the donor is a healthy individual, so employers question whether laws that provide time off for employees with health conditions such as the federal FMLA or their state equivalent cover the healthy donor’s absence from work. The U.S. DOL’s opinion letter this week helped clarify the confusion.

The other opinion letter addressed a no fault attendance policy that freezes an employee’s accrued attendance points during an FMLA leave. The DOL opined that the attendance policy did not violate the FMLA because the employee neither loses a benefit nor receives an additional benefit to which the employee would not otherwise be entitled by taking FMLA, as long as employees on similar types of leaves are treated the same under the policy.

In 2010, the DOL stopped issuing opinion letters in exchange for more broad-based Administrator Interpretations. Then in June 2017, the DOL announced it would reinstate issuing opinion letters and updated its website to assist employers and employees in requesting a letter. The DOL has issued only 2 opinion letters covering the FMLA since reinstating the practice. Opinion letters can be a great tool for employers to navigate tricky FMLA compliance issues. Receiving an opinion letter can later establish an employer’s good faith defense against liability.

FINEOS Absence can help untangle the web of leave of absence laws and regulations and knowing when state and federal leave laws overlap and run concurrently or consecutively.

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