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: