By: Oyvind Wistrom

On August 28, 2018, for the first time in almost ten years,  the U.S. Department of Labor’s Wage and Hour Division (DOL) issued two new advisory opinion letters providing employers with guidance on the application of the Family Medical Leave Act (FMLA) to organ donors and a no-fault attendance policy.  While the advisory opinion letters are not binding authority or legal precedent, they signal DOL’s interpretation of the law and provide helpful guidance for employers in handing some interesting nuances of the law.

FMLA Protects Organ Donors

In one of the advisory letters, the DOL concluded that organ-donation surgery can qualify as a “serious health condition” under the FMLA, thus entitling an employee with up to 12 weeks of protected leave.  This is the case even if the employee was in good health before the donation and voluntarily elected to undergo the surgery.  The DOL reasoned that organ-donation surgery may require both “inpatient care” or “continuing treatment” and, therefore, meets the regulatory definitions of a serious health condition.  A serious health condition is defined as an illness or physical condition that requires inpatient care at a hospital.  Since the typical hospital stay after organ donation surgery is four to seven days, organ donation qualifies as a serious health condition.

No-Fault Attendance Policy under the FMLA

In another letter, the DOL addressed a company’s no-fault attendance policy and found that it did not violate the FMLA.  Under the company’s policy, employees accrued points for tardiness and absences, except for certain absences, including FMLA-protected leave.  The points remained on an employee’s record for 12 months, and the employer would extend that period for any time the employee was not in “active service,” such as during an FMLA leave.

The DOL concluded that “freezing” an employee’s attendance points while on FMLA leave did not violate the Act by denying a benefit to the employee who took FMLA leave.  The DOL reasoned that the FMLA does not entitle an employee to superior benefits because of FMLA leave, and the attendance policy placed the employee in the same position as if he or she had never taken leave.  The DOL cautioned, however, that employers must not treat FMLA leave different from other forms of leave.  Thus, the employer must “freeze” an employee’s attendance points for all similar types of leave.

This opinion letter highlights, first, that absences necessitated by an FMLA leave cannot be counted under a company’s no-fault attendance policy.  Additionally, an employer is not required to remove attendance points from an employee on FMLA leave where the employer has an “active service” component to their policy – as long as the company treats other employees on leave for other reasons the same (i.e., vacation, W.C. leave, etc.).