by Marti Cardi, Esq. - Vice President, Product Compliance
& Gail Cohen, Esq. - Director, Employment Law And Compliance
August 31, 2018
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
- 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 firstname.lastname@example.org.