DOL Issues New FMLA Opinion Letters

September 04, 2018

The U.S. Department of Labor has issued two new opinion letters addressing various compliance issues under the Family and Medical Leave Act (FMLA).

First, organ donation qualifies for FMLA leave. Even when the donor is in good health before the donation and chooses to donate the organ solely to improve someone else’s health, an organ donation can qualify as an impairment or physical condition that is a serious health condition under the FMLA when it involves either "inpatient care" or "continuing treatment", and thus would qualify as a serious health condition whenever it results in an overnight stay in a hospital. Moreover, organ-donation surgery commonly requires overnight hospitalization, which alone suffices for the surgery and the post-surgery recovery to qualify as a serious health condition.

Second, a "no-fault attendance policy" that 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 did not violate the FMLA, provided it was applied in a nondiscriminatory manner. Under the policy, points remain on an employee’s record for 12 months of "active service" after accrual, although the policy does not define " active service." An employee’s points are then extended for the duration of his or her FMLA leave, meaning an employee returns from FMLA leave with the same number of points that he or she accrued prior to the leave, and the points may remain on his or her record for more than twelve months.