The Law @ Work

DOL Issues New FMLA forms and FMLA Opinion Letter

by Amelia J. Holstrom

In recent weeks, the federal Department of Labor has been busy addressing various Family and Medical Leave Act (FMLA) issues.  In August, the DOL issued new FMLA forms.  Under federal law, the DOL must submit FMLA forms to the Federal Office of Management and Budget every three years for approval.  The previous forms expired on May 31, 2018 and the DOL had to renew them until the new forms were approved.  The new FMLA forms have an expiration date of August 31, 2021.  Other than the expiration date, there are no changes to any of the FMLA forms.  Employers should use the new forms effective immediately.

And, for the first time in almost ten years, the DOL’s Wage and Hour Division has started issuing opinion letters addressing various questions under the FMLA.  We previously wrote about Opinion Letter FLSA2018-19, which addressed pay for short breaks covered by FMLA leave.  Last month the DOL issued another opinion letter, this time addressing the issue of organ donors’ eligibility for FMLA leave.

Opinion Letter FMLA2018-2-A addresses whether organ-donation surgery is a “serious health condition” under the FMLA.  The letter was written in response to an employer that asked whether an employee who is otherwise healthy but volunteers to donate an organ solely to improve someone else’s health can use FMLA leave in connection with absences related to the organ donation surgery.  Although the DOL did not go so far as to state that organ donation by an otherwise healthy individual is always a serious health condition, it did state that it “can qualify” as a serious health condition when it involves inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider.  The DOL noted that the FMLA regulations define “inpatient care” as “an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity… or any subsequent treatment in connection with such inpatient care.”  Since most (if not all) organ donation procedures currently involve an overnight stay in a hospital, organ donation surgery typically will entitle an employee to FMLA leave.  Accordingly, if you have an employee who requests FMLA leave to donate a kidney or another organ to a relative, or even a stranger, send the employee the appropriate FMLA paperwork, and, while you’re at it, commend them for their good deed.

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