What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the seventeenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Being unaware of new FMLA interpretations from the U.S. Department of Labor.

While the current version of the FMLA regulations has been in place since 2013, is important to keep up to date on the interpretation of the regulations by the U.S. Department of Labor Wage and Hour Division (“DOL”). This is especially the case now. After a hiatus of several years, the DOL is again issuing opinion letters on the FMLA regulations. On August 28, 2018, the DOL issued two new advisory opinion FMLA letters.

Whether organ donation is a serious health condition

On August 28, 2018, the DOL published an opinion letter which answers the question, “Does organ-donation surgery…qualify as a ‘serious health condition’ under the FMLA?” In short, the DOL answered: “yes, it can.”

The DOL analyzed this question under a scenario where the donor is in good health before the donation, and chooses to donate the organ solely to improve someone else’s health. Citing the FMLA regulations, the DOL maintained that an organ donation can qualify as an impairment or physical condition that is a serious health condition when it involves either “inpatient care” or “continuing treatment.” Therefore, an organ donor can use FMLA leave for post-operative treatment, even where the organ-donation surgery requires an overnight stay.

To read the DOL’s opinion, see Organ Donation Opinion Letter

“No-fault” attendance policies

In the second letter, the DOL tackled the question of whether an employer’s no-fault attendance policy violates the FMLA where the policy effectively freezes, throughout the duration of an employee’s FMLA leave, the number of attendance points that the employee accrued prior to taking leave. The DOL concluded that such a policy does not violate the FMLA, provided it is applied in a nondiscriminatory manner.

Under the employer’s policy, employees accrue points for tardiness and absences, not including absences stemming from FMLA-protected leave. The points remain on an employee’s record for twelve months, and the employer extends that period for any time the employee spends not in “active service” including FMLA leave and other types of leave. The DOL noted that an employee neither loses a benefit that accrued prior to taking leave nor accrues any additional benefit to which the employee would not otherwise be entitled. The DOL reinforced its long-standing position that such practices do not violate the FMLA, as long as employees on equivalent types of leave receive the same treatment. The DOL noted, however, that if the employer counts equivalent types of leave as “active service” under its no-fault attendance policy, then the employer may be unlawfully discriminating against employees who take FMLA leave.

To read the DOL’s opinion, see No Fault Opinion Letter