On August 28, 2018, the U.S. Department of Labor’s Wage Hour Division issued six new advisory opinion letters offering employers guidance on a range of leave and wage issues under federal law, including the application of the Family Medical Leave Act to organ donors and a no-fault attendance policy.

FMLA Protects Organ Donors

In one letter, the DOL concluded that “organ-donation surgery can qualify as a ‘serious health condition’” under the FMLA, thus entitling the employee to protected leave. The DOL reached this conclusion despite that 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.

No-Fault Attendance Policy Complies with FMLA

In another letter, the DOL concluded that an employer’s specific no-fault attendance policy did not violate the FMLA. Under the 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 that period for any time the employee spent not in “active service,” such as during FMLA leave. The employer discharged an employee who accrued 18 points.

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 never taken any 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.

Employers Need Not Pay for Voluntary Participation in Wellness Screenings

In a third letter, the DOL concluded that an employer need not pay employees who voluntarily choose to participate in biometric screenings, wellness activities, and benefit fairs. The DOL emphasized that, in the employer’s program at issue, the program predominately benefited the employee, was wholly optional, and employees did not need to perform any job-related duties during the program.

Guidance on FLSA Overtime and Volunteer Exemptions

The DOL also issued two letters clarifying the application of FLSA overtime exemptions. One letter concluded that the retail-sales exemption applied to employees who sold an internet payment software platform. The second letter concluded that an FLSA exemption for employees working in movie theaters applied equally to a theater that offered in-theater dining.

A third letter concluded that workers who assisted a nonprofit organization with grading a credentials exam qualified as volunteers who did not require compensation.

Background on DOL Opinion Letters

DOL opinion letters allow businesses to ask the DOL for answers to their specific compliance questions under the statutes the DOL enforces. The DOL’s opinion letters do not constitute definitive statements of the law; but the letters signal the DOL’s own interpretation and enforcement priorities, and courts often look to them as persuasive authority on the law. In addition, the letters provide a possible safety net to employers facing similar situations. Employers who rely on DOL opinion letters in good faith sometimes qualify for a defense to alleged violations of federal wage-hour law, even if a court later disagrees with the DOL’s interpretation.

The letters mark one of only a handful of times the DOL has issued letters in the last year. In June 2017, the DOL announced that it would begin re-issuing opinion letters, after the Obama administration eliminated the practice.