The DOL Issues Two Opinion Letters That Address FMLA Compliance

On Aug. 28, 2018, the DOL issued two new opinion letters related to the FMLA. One opinion letter relates to an employer’s no-fault attendance policy during an employee’s FMLA leave and the second outlines how an organ donor may qualify for FMLA leave. As a quick reminder, an opinion letter is an official, written opinion on how an employer can maintain compliance in specific circumstances that are presented by the person or entity requesting the letter. An employer can use the provided guidance when handling similar situations.

No-Fault Attendance Policy Can Be Compliant Under the FMLA (FMLA2018-1-A)
Opinion letter FMLA 2018-1-A responds to a request for a ruling on whether an employer’s no-fault attendance policy violates the FMLA. The policy effectively freezes the number of attendance points that an employee accrues prior to taking FMLA leave. The DOL determined that, as long as the policy is nondiscriminatory, it doesn’t violate the FMLA.

FMLA generally prohibits employers from “interfering with, restraining, or denying” an employee’s exercise of FMLA rights. Further, an employer cannot discriminate or retaliate against an employee for having taken FMLA nor can the taking of FMLA be a negative factor in employment actions. As such, employers are required to provide an employee who takes FMLA leave with the same benefits that an employer on leave without pay would otherwise be entitled to receive. An employee’s entitlement to benefits is determined by the employer’s policy for providing benefits when the employee is on other forms of leave (paid or unpaid).

This opinion letter reviewed an employer’s attendance policy wherein employees accrue points for tardiness and absences and those that accrue eighteen points within a twelve month period of “active service” are automatically discharged. There are certain absences, including FMLA-protected leave, that don’t accrue points. Upon return from such a leave, employees each have the same number of points that they accrued prior to the leave. The leave essentially pauses “active service” and the points are extended for the duration of the FMLA leave. So, an employee returns from leave with the same number of points that he or she accrued prior to the leave. The employer’s policy is applied in this same manner for other types of leave, including leave related to workers’ compensation.

In the letter, the DOL points out that removal of absenteeism points is a reward for working and therefore an employment benefit under the FMLA. Under this employer policy, an employee neither loses a benefit that accrued prior to taking the leave nor accrues any additional benefit. So, as long as employees on equivalent types of leave receive the same treatment, the practice doesn’t violate FMLA.

This opinion letter is a good reminder for employers obligated to comply with FMLA that FMLA can interact with many different policies. Employers can take this opportunity to review existing policies to ensure that they don’t discriminate against any employee on FMLA leave.

Organ donation eligibility for FMLA (FMLA2018-2-A)
Opinion letter FMLA 2018-2-A responds to a request asking whether an organ-donation surgery can qualify for FMLA leave even though such an employee is choosing to donate the organ solely to improve someone else’s health. Secondarily, the letter addresses whether an organ donor can use FMLA leave for post-operative treatment. The DOL determines that both situations can qualify for FMLA leave.

As background, the FMLA allows an employee to take unpaid, job-protected leave for specific family and medical reasons, including leave for a “serious health condition” that renders the employee unable to perform the functions of their job. A “serious health condition” may include an illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice or residential medical care facility. The regulations define “inpatient care” as an overnight stay in an above-mentioned facility or any subsequent treatment in connection with such inpatient care.

The DOL determines that an organ donation can qualify as a “serious health condition” under the FMLA when it involves either “inpatient care” or “continuing treatment.” The employer included a statement within the request that organ donation surgery typically requires an overnight hospital stay. The DOL opined that in such case, the organ donation surgery and any related post-operative treatment would be considered a “serious health condition” to qualify for FMLA leave.

This opinion letter provides guidance for employers that an otherwise healthy employee may use FMLA leave for a voluntary organ donation surgery. It also serves as a good reminder to employers that each FMLA leave request is fact-specific and can involve a facts and circumstances-based analysis.

Bryan Jarrett. “Opinion Letter FMLA2018-1-A”, »
Bryan Jarrett. “Opinion letter FMLA2018-2-A”, »