{"id":503,"date":"2018-10-12T13:38:05","date_gmt":"2018-10-12T18:38:05","guid":{"rendered":"http:\/\/lindner-marsack.com\/news\/?p=503"},"modified":"2018-10-12T14:18:21","modified_gmt":"2018-10-12T19:18:21","slug":"the-department-of-labor-issues-two-new-advisory-opinion-letters-on-the-fmla","status":"publish","type":"post","link":"https:\/\/lindner-marsack.com\/news\/the-department-of-labor-issues-two-new-advisory-opinion-letters-on-the-fmla","title":{"rendered":"THE DEPARTMENT OF LABOR ISSUES TWO NEW ADVISORY OPINION LETTERS ON THE FMLA"},"content":{"rendered":"<p>By: Oyvind Wistrom<\/p>\n<p>On August 28, 2018, for the first time in almost ten years, \u00a0the U.S. Department of Labor\u2019s 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.\u00a0 While the advisory opinion letters are not binding authority or legal precedent, they signal DOL\u2019s interpretation of the law and provide helpful guidance for employers in handing some interesting nuances of the law.<\/p>\n<p><strong><u>FMLA Protects Organ Donors<\/u><\/strong><\/p>\n<p><a href=\"https:\/\/www.dol.gov\/whd\/opinion\/FMLA\/2018\/2018_08_28_2A_FMLA.pdf\">In<\/a> one of the advisory letters, the DOL concluded that organ-donation surgery can qualify as a \u201cserious health condition\u201d under the FMLA, thus entitling an employee with up to 12 weeks of protected leave.\u00a0 This is the case even if the employee was in good health before the donation and voluntarily elected to undergo the surgery.\u00a0 The DOL reasoned that organ-donation surgery may require both \u201cinpatient care\u201d or \u201ccontinuing treatment\u201d and, therefore, meets the regulatory definitions of a serious health condition.\u00a0 A serious health condition is defined as an illness or physical condition that requires inpatient care at a hospital. \u00a0Since the typical hospital stay after organ donation surgery is four to seven days, organ donation qualifies as a serious health condition.<\/p>\n<p><strong><u>No-Fault Attendance Policy under the FMLA<\/u><\/strong><\/p>\n<p><a href=\"https:\/\/www.dol.gov\/whd\/opinion\/FMLA\/2018\/2018_08_28_1A_FMLA.pdf\">In another letter<\/a>, the DOL addressed a company\u2019s no-fault attendance policy and found that it did not violate the FMLA.\u00a0 Under the company\u2019s policy, employees accrued points for tardiness and absences, except for certain absences, including FMLA-protected leave.\u00a0 The points remained on an employee\u2019s record for 12 months, and the employer would extend that period for any time the employee was not in \u201cactive service,\u201d such as during an FMLA leave.<\/p>\n<p>The DOL concluded that \u201cfreezing\u201d an employee\u2019s attendance points while on FMLA leave did not violate the Act by denying a benefit to the employee who took FMLA leave.\u00a0 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.\u00a0 The DOL cautioned, however, that employers must not treat FMLA leave different from other forms of leave. \u00a0Thus, the employer must \u201cfreeze\u201d an employee\u2019s attendance points for all similar types of leave.<\/p>\n<p>This opinion letter highlights, first, that absences necessitated by an FMLA leave cannot be counted under a company\u2019s no-fault attendance policy.\u00a0 Additionally, an employer is not required to remove attendance points from an employee on FMLA leave where the employer has an \u201cactive service\u201d component to their policy \u2013 as long as the company treats other employees on leave for other reasons the same (i.e., vacation, W.C. leave, etc.).<\/p>\n<p>&nbsp;<\/p>\n<p>&nbsp;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>By: Oyvind Wistrom On August 28, 2018, for the first time in almost ten years, \u00a0the U.S. Department of Labor\u2019s 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.\u00a0 While the [&hellip;]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[18,8],"tags":[],"class_list":["post-503","post","type-post","status-publish","format-standard","hentry","category-dept-of-labor","category-fmla"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p5WrIF-87","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts\/503","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/comments?post=503"}],"version-history":[{"count":1,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts\/503\/revisions"}],"predecessor-version":[{"id":504,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts\/503\/revisions\/504"}],"wp:attachment":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/media?parent=503"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/categories?post=503"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/tags?post=503"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}