Organ donors can qualify for FMLA, DOL says

Dive Brief:

An employee can qualify for Family and Medical Leave Act (FMLA) leave after donating an organ, the U.S. Dept. of Labor (DOL) wrote in opinion letter FMLA2018-2-A published yesterday.
If a donor's situation would involve impatient care and/or continuing treatment, his or her condition would qualify as a serious health condition under the FMLA, the agency said.
DOL elaborated that the FMLA defines a serious health condition, which would render an employee unable to perform the basic functions of a job, "as an 'illness, injury, impairment, or physical or mental condition that involves' either 'inpatient care in a hospital, hospice, or residential medical care facility' or 'continuing treatment by a health care provider.'"

Dive Insight:

DOL's opinion comes in its second round of wage and hour letters since the department transitioned back to the program, which answers specific questions from employers. The Obama administration had instead opted for broader "Administrator Interpretations." The first group, released in April, included a letter opining that 15-minute, doctor-requested, FMLA breaks do not need to be paid, although all workers should get the same amount of paid breaks.

FMLA leave administration can be complicated, and it certainly gives rise to a lot of litigation. But most of this legal trouble, experts say, is avoidable, because it is caused by managers. The opinion letter offers some details on what the unnamed employer asked about: "whether an employee who donates an organ can qualify 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." It's a fair question, and one can imagine how an untrained manager could mangle such a conversation with an employee.

Employers seeking to ensure compliance should should consider FMLA training for managers, employment law attorneys recommend. Managers who can differentiate between FMLA leave and regular sick days and ask the right questions will fair much better when approached.