Key opinion letter allows FMLA leave for voluntary organ donation
Earlier this week, the U.S. Department of Labor (“DOL”) issued six advisory opinion letters on various Family and Medical Leave Act (“FMLA”) and Fair Labor Standards Act (“FLSA”) issues. From time to time, opinion letters such as these are issued to provide legal guidance to employers.
The DOL opinion letter likely to be of most interest to US companies is the one that addressed whether an employee in good health who voluntarily chooses to undergo organ donation surgery could use FMLA leave for post-operative care. See FMLA2018-2-A. The DOL opined that this would qualify as a “serious health condition” under the FMLA if it involved either “inpatient care” or “continuing treatment.” See 29 C.F.R. §§ 825.114 and 825.115.
Though the DOL opinion letter touched on medical certification as a “basic requirement” for FMLA leave, the DOL did not appear to find it significant that the employee was choosing to undergo the surgery voluntarily and “solely to improve someone else’s health.” Instead, it focused on the medical treatment that would be involved in the organ donation surgery.
The other DOL opinion letters covered a variety of topics, and set forth the following opinions:
- Employees voluntarily participating in wellness activities, biometric screenings, and benefits fairs need not be compensated under the FLSA, regardless of whether the time occurs during normal working hours or after hours. See FLSA2018-20.
- A company selling a technology platform to merchants to enable online credit card payments qualified for the FLSA’s “retail or service establishment” exemption from overtime pay requirements. See FLSA2018-21.
- A non-profit organization that sends professionals to conduct grading for a global credentialing examination for one to two weeks per year would be able to treat the graders as volunteers rather than employees, despite paying for the graders’ transportation, accommodation, and meals, if the graders do not receive a fee for their services. See FLSA2018-22.
- A movie theater chain that provides in-theater food and full-service dining that is functionally integrated with its theater operations, and which is primarily engaged in showing motion pictures, qualified for the “motion picture theater” exemption to the FLSA overtime requirements. See FLSA2018-23.
- An employer’s points-based no-fault attendance policy did not violate the FMLA, as long as employees on equivalent types of leave received the same treatment as employees on FMLA leave. See FMLA2018-1-A.
DOL opinion letters carry some limitations. They are specific to the requesting party’s situation and based on the information voluntarily provided to DOL by the requestor. But the letters are nevertheless a valuable compliance tool for employers. Prudent employers will update their policies regularly and consider any necessary changes to their payroll and leave practices.
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