New DOL FMLA Opinion Letters – Organ Donation and No-Fault Attendance Policies

Posted on: August 31, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

Occasionally the U.S. Department of Labor issues opinion letters as a means of providing interpretive guidance on the FMLA. An opinion letter is an official, written opinion by the Wage and Hour Division of how a particular law applies in specific circumstances presented by an employer, employee, or other entity requesting the opinion. Thus, it provides an official, reliable interpretation of the FMLA and its regulations.

We may not always agree with the Division’s opinion, but at least we know where the agency stands!

On August 28, the DOL issued two new FMLA opinion letters:

Is incapacity due to organ donation covered by FMLA?

Opinion Letter FMLA2018-2-A offers guidance on whether time missed due to an organ donation is covered by the FMLA. Specifically, can an otherwise healthy employee, who does not himself suffer from a serious health condition, take FMLA to undergo organ donation surgery, recover from surgery, and receive other postoperative treatment?

The DOL concluded that the answer is “yes.”

As our readers know, for an eligible employee to take FMLA for his own condition he must have a serious health condition. This term generally indicates that the employee has an “illness, injury or mental or physical impairment” that requires “inpatient care” or “continuing treatment” and that makes the employee unable to perform the functions of his job  The DOL reasoned that the treatment itself the employee must undergo in connection with an organ donation renders the time associated with doing so a qualifying serious health condition. The surgery to donate an organ typically involves a stay in a hospital for one or more nights, which qualifies as “inpatient care.” Once the definition of a serious health condition is met, other periods of incapacity related to the serious health condition, such as recovery and postoperative treatments, will also be FMLA-protected absences.

Although not directly stated, the implication is that it doesn’t matter if the serious health condition arises from a voluntary situation – in this case, donating an organ to someone else. If the employee’s health situation meets one of the definitions of a serious health condition, absences are covered by the FMLA.

This is certainly an elaboration on the common understanding that, in general, the employee has to have an existing condition that necessitates time away from work for treatment. With this opinion letter, the DOL makes it clear that even if there is no existing serious health condition, elective treatment that creates a serious health condition can support FMLA leave and job protection. Another example where this might apply is infertility treatment. The condition of infertility is not an incapacitating condition but the treatment may incapacitate the employee and therefore provide FMLA protections.

PINGS FOR EMPLOYERS:

  • Always analyze whether an employee has a serious health condition in accordance with the definitions
    in the regulations. Even those conditions that the DOL notes will not typically be a serious health condition
    (the common cold, the flu, etc.) might qualify if the employee’s condition, incapacity, and/or treatments meet
    one of the definitions.
  • Don’t be influenced by whether the employee’s serious health condition is brought on by voluntary treatment
    for the benefit of the employee such as cosmetic treatments or for the benefit of others such as organ or
    bone marrow donation.
  • Judge each situation on its particular facts; don’t make assumptions based on the nature of the
    employee’s condition.
  • Remember that some states have laws that protect employees who need leave to donate an organ,
    bone marrow, and other human tissue. You can refresh yourself on these laws with our prior blog post here.

No-Fault Attendance Policies Done Right!

The DOL’s other August 28 opinion letter (FMLA2018-1-A) relates to an employer favorite – no-fault attendance policies. These are polices where an employee’s absence, no matter what the cause, is counted against the employer’s attendance point system. Once an employee accrues a pre-set number of absences, she is subject to discharge per employer policy. Points usually roll off the employee’s record after a certain period of time, such as 12 months after the absence. The catch is that absences attributable to FMLA leave cannot be counted toward an employer’s attendance policy.

An employer posed this question to the DOL: Does an employer’s no-fault policy violate the FMLA if it is put on hold during FMLA leave and the employee returns to work with the same number of attendance points as he had accrued prior to the start of leave? The DOL says no, as long as the policy is applied in a nondiscriminatory (read: consistent) manner.

Under this employer’s policy, attendance points remain on an employee’s record for 12 months. But, if the employee goes on FMLA leave, the employee’s accrued points at the beginning of the leave remain and do not roll off during the leave.

The DOL recognized that the FMLA does not entitle an employee to superior benefits or position simply because he or she took FMLA leave. (e.g., 29 C.F.R. § 825.214.) Removal of absenteeism points is a reward for working and therefore an employment benefit under the FMLA. If the number of accrued points remains effectively frozen during FMLA leave under the employer’s attendance policy, an employee does not lose a benefit that accrued prior to taking the leave. According to the new opinion letter, the DOL’s longstanding position is that such practices do not violate the FMLA, as long as employees on equivalent types of leave receive the same treatment.

On the other hand, if the employer counts equivalent types of leave as “active service” under the no-fault attendance policy—meaning the employer counts such leave toward the twelve months necessary to remove points—then the employer may be unlawfully discriminating against employees who take FMLA leave.

PINGS FOR EMPLOYERS:

  • Review your “no-fault” attendance policy to ensure that it does not penalize employees for absences
    attributable to FMLA reasons.
  • Treat any policy regarding “freezing” of attendance points accrual or roll-off the same for FMLA absences
    as for any other types of absences (for example, absences attributable to a workers’ comp injury or pursuant
    to a personal leave policy).

For more background on DOL opinion letters, you can review our prior blog post.

MATRIX CAN HELP!

Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together.

If you have questions, contact your Account Manager or ping@matrixcos.com.

No Bones About It – Donor Leave Laws Continue to Increase

Posted on: June 24, 2016 0

Wisconsin Supports Its Donor Employees

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director, Compliance & Employment Law

RG with donor cardNext week Wisconsin joins the growing list of states with laws mandating leave of absence for employees to donate organs, bone marrow, blood, and other types of human tissue.

The state’s Bone Marrow and Organ Donation Leave law goes into effect on July 1, 2016.   Here is a summary of the law’s significant provisions.

(Also: see our handy state donor leaves chart below.)

New Wisconsin Donor Leave Law: Significant Provisions

Covered Employers 50 or more permanent employees
Eligible Employees •  More than 52 consecutive weeks of service and
•  At least 1,000 hours worked in the previous 52 weeks
Leave Reasons To serve as a bone marrow or organ donor
Leave Entitlement Up to 6 weeks in a 12-month period
Leave Year Calculation Measured forward from first date of donor leave
Paid/Unpaid Donor leave is unpaid; but employee may choose to substitute available paid leave
Interaction with Wisconsin Family /Medical Leave Act Not specified but appears to be a separate leave right in addition to leave rights under the WI FMLA.

 

Analysis:   This is a new leave law, not just an additional leave reason under the WI FMLA. This suggests legislative intent for this leave to be independent of, and in addition to, any leave right the employee may have under the WFLA.  Our discussion with a representative of the Wisconsin Department of Workforce Development (DWD) supports this interpretation.

Employee Notice Advance notice in a “reasonable and practicable manner”

•  No requirement that notice be in writing

Scheduling Employee must make a reasonable effort to schedule procedure so that it does not unduly disrupt employer’s operations

•  But scheduling is subject to approval of donee’s provider

Certification Employer may require a certification from donee’s or employee’s health care provider:

•  That the donee has a serious health condition that necessitates a bone marrow or organ transplant;

•  That the employee is eligible for and has agreed to serve as a bone marrow or organ donor for the donee; and

•  The amount of expected leave time for the procedure and employee’s recovery

Restoration Rights Upon Return from Leave Restoration to:

•  Employee’s previous position if vacant; or

•  A position equivalent in terms of compensation, benefits, shifts, hours of employment and other terms and conditions of employment

Group Health Insurance Coverage Employer required to maintain coverage during leave under the same conditions that applied before leave
Nondiscrimination Employees who request, or take, WI bone marrow and organ donation leave are protected from discharge and other adverse employment actions based on their exercise of leave rights
Discrimination Complaints Must be filed with the DWD within 30 days after the violation occurs
Civil Right of Action Private right of action within 60 days after completion of the administrative process before the DWD, but no later than 12 months after the violation occurred
Employer posting requirements Employers must post in one or more conspicuous places where employee notices are customarily posted:

•  All employers:  a notice, to be created by the DWD, of the employee’s rights

•  Employers with 25 or more employees: a copy of the employer’s policy regarding donor leave

Note:  These posting requirements seem at odds with the fact that the law only applies to employers with 50 or more permanent employees.

States with Donor Leaves

Wisconsin joins a number of other states with bone marrow and organ donation leave laws. Here is a snapshot of the states with such laws for private employers.

State Employee Eligibility Covered Employers Leave Reasons Length /Frequency of Leave Paid/
Unpaid
Arkansas

Ark. Code Annot. §11-3-205, et. seq

 

All employees All employers Bone marrow or organ donation Up to 90 days Unpaid (but state tax credit available for employers who provide paid leave)
California

Cal. Lab. Code § 1508 et seq.

90 days of service 15 or more employees Bone marrow or organ donation •  Organ donation:  up to 30 business days
•  Bone marrow donation: up to 5 business days
•  In a 12-month period.
Paid, but employer can require employees to substitute up to 2 weeks of paid leave benefits (employer pays remainder).
Connecticut

C.G.S. §31-51ll(a)(2)(E)

•  12 months of service
•  1000 hours of service during that 12 month period
75 or more employees Organ or bone marrow donation 16 workweeks in a 24-month period
•  Shared with other leave reasons under CT FMLA
Unpaid

•  Employer may require, or employee may elect, to substitute accrued paid leave benefits

Hawaii

H.S.A. §398a-3

20 or more hours per week 20 or more employees Donation of bone marrow, peripheral stem cells, or organ •  Organ donation:  up to 30 days
•  Bone marrow or peripheral stem cells:  up to 7 days
Unpaid

•  Employers can require employees to use up to 2 weeks (organ donation) or 3 days (other donation) of sick or other time off during donor leave

Illinois

820 ILCS 149

6 months of employment 51 or more employees Blood donation 1 hour every 56 days Paid
Louisiana Louisiana Rev. Stats. §40: 1299.124

 

 

 

20 or more hours per week

 

 

20 or more employees at one location Bone marrow donation Up to 40 hours Paid
Maine

26  M.R.S.A.
§§843, 844

12 consecutive months of employment 15 or more employees at one location Organ donation Up to 10 weeks every 2 years
•  Shared with other leave reasons under ME FMLR
Unpaid
Minnesota

M.S.A. §181.945

20 or more hours per week 20 or more employees at one location Bone marrow donation Up to 40 hours Paid
New York

NY Labor Law §202-a

 

20 or more hours per week 20 or more employees at one location Blood or bone marrow donation •  Blood donation:  3 hours
•  Bone marrow donation: 24 hours
Unpaid
Oregon

Ore. Rev. Stat. §659A.312

 

20 or more hours per week All Bone marrow donation Amount of paid time off employee has accrued or 40 hours, whichever is less Employee required to use his or her accrued paid leave
South Carolina

SC §44-43-80

 

20 or more hours per week 20 or more employees at one location Bone marrow donation Up to 40 hours Paid
Wisconsin

Wisc. Stat. §103.11

•  More than 52 consecutive weeks of service and
•  At least 1,000 hours worked in the previous 52 weeks
50 or more permanent employees Bone marrow or organ donation Up to 6 weeks in a 12-month period Unpaid
•  Employee may choose to substitute available paid leave

And finally, Nebraska – in an abundance of employee support – “encourages” employers to grant paid leaves of absence to employees who seek to undergo a medical procedure to donate bone marrow.  Neb. Rev. Stat. §71-4820.

MATRIX CAN HELPMatrix Absence Management will be ready to manage the new Wisconsin donor leave law effective July 1.  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and will post periodic updates in this blog.  In addition, our clients receive Matrix’s monthly Legislative Update, which pulls together developments in the world of leave laws and accommodations in a concise and timely format.  With the passage of each new leave law Matrix assesses employer needs and industry demands to determine whether administration of the new law should be added to Matrix’s suite of services.

Contact Matrix at 1-800-866-2301 to learn more about our services for complete management of leaves of absence, disability plans (state and private), and ADA accommodations, including leave.