September 17, 2018
Authored by: Christy Phanthavong and Kathryn Scott
The U.S. Department of Labor (“DOL”) recently released two new opinion letters relating to the Family and Medical Leave Act (“FMLA”), which provides eligible employees the right to unpaid, job-protected leave for certain family and medical reasons. The DOL also issued “new” forms relating to FMLA leave, which should be used on a going-forward basis.
In the first opinion letter, the DOL addressed the question of whether leave resulting from organ donation, including post-operative treatment, could qualify for FMLA leave. The brief answer: Yes, so long as the need for leave meets the FMLA’s definition of serious health condition. An employee’s organ donation can qualify as a serious health condition when it involves “inpatient care” or “continuing treatment.” See 29 C.F.R. §§ 825.114, .115. And, since an organ donation would qualify as a serious health condition whenever it results in an overnight stay in a hospital – which is commonly involved in such donation – it is likely that the FMLA would apply.
Importantly, the reason for the organ donation – e.g., the fact that the organ donor is in good health before the donation or chooses to donate the organ solely to improve someone else’s health – played no bearing in the DOL’s response. The takeaway: The DOL is not going to delve into the reason someone has a serious health condition requiring leave (and neither should the