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The Wage and Hour Division (WHD) of the Department of Labor (DOL) made news Tuesday when it issued two new Opinion Letters addressing sticky Family and Medical Leave Act (FMLA) issues that can vex employers:

Organ Donation and the FMLA: In Opinion Letter FMLA2018-2-A, the employer sought information on whether organ donation surgery can qualify as a serious health condition under the FMLA. Specifically, the employer inquired whether an employee who donates an organ can qualify for FMLA leave, even when the donor is in good health before the donation, and whether an organ donor can use FMLA leave for post-operative treatment. The WHD, after setting forth the general legal definitions of a serious health condition, including inpatient care plus treatment or continuing treatment, concluded that an organ donation can qualify as a serious health condition when it meets either of those definitions. 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.”

While this conclusion may not come as a surprise to many employers, it does make it perfectly clear that, even in the absence of a specific organ donation leave law, an employee’s medical needs stemming from the choice to donate an organ can qualify as a serious health condition.

No-Fault Attendance Policies: We have spoken frequently about the pitfalls of so-called “No-Fault” Attendance Policies, mostly within the context of the Americans with Disabilities Act. In Opinion Letter FMLA2018-1-A, the WHD addresses these types of policies as they intersect with the FMLA. The Opinion Letter considers a no-fault attendance policy that freezes, throughout the duration of an FMLA leave, the number of attendance points an employee accrued prior to taking leave. Under the policy, employees accrue points for tardiness and absences but not FMLA-protected absences, or absences for workers’ compensation, vacation, and other specified reasons. Points remain on an employee’s record for 12 months of “active service.” After accruing 18 points, an employee is discharged. In the specific policy addressed in the Opinion Letter, an employee’s points are frozen for the duration of the FMLA leave i.e., an employee returns from FMLA leave with the same number of points accrued prior to the leave, and the points remain on his or her record for 12 months, not including the period of FMLA leave, since it does not qualify as “active service.” The policy treats other leaves for which employees do not accrue points, such as workers’ compensation-related leave, the same.

It is clear, and the Opinion Letter acknowledged, that points cannot be charged to an employee for FMLA leave under no-fault attendance policies. Conversely, the FMLA does not entitle an employee to better benefits because of a FMLA leave. The WHD concluded that here, an employee does not lose a benefit that accrued prior to leave, nor does an employee accrue any additional benefit to which he or she would not otherwise be entitled. The WHD concluded that, as long as employees on equivalent types of leave receive the same treatment, the policy does not violate the FMLA. The WHD did note that the outcome would be different if the employer counted equivalent types of leave (workers’ compensation, for example) as “active service” under the no-fault attendance policy.

An opinion letter is an official written opinion by WHD on how a particular law applies in specific circumstances presented by the person or entity requesting the letter. The WHD Deputy Administrator Bryan Jarrett stated, “Opinion letters help provide greater clarity for American job creators and employees. The opinion letters issued today show the ongoing efforts of the Department to provide the tools employers need to comply with the law and protect workers.” Employers can request an opinion letter on the WHD website.

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