FMLA Update - Organ Donation

Under the Family and Medical Leave Act (the “FMLA”), eligible employees of covered employers are entitled to take unpaid, job-protected leave for specified family and medical reasons which includes up to 12 weeks of leave in a 12-month period for a serious health condition. The FMLA defines "serious health condition" as an illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice, or residential medical care facility or continuing treatment by a health care provider.

The U.S. Department of Labor ("DOL") recently issued Opinion Letter FMLA 2018-2-A, clarifying that organ donation surgery can qualify as a serious health condition that is eligible for leave protected under the FMLA.  The DOL's opinion letter is related to an earlier inquiry it received from Congresswoman Jaime Herrera Beutler (R-WA, 3rd District). In 2016, the Congresswoman’s husband donated a kidney to their daughter. In her review of the FMLA as it applied to her family situation, she had a need for clarification on the ability of her husband to access FMLA-protected leave even though he was not the family member diagnosed with a serious health condition. Specifically, Herrera Beutler requested that the DOL confirm: 

1. Whether an employee who donates an organ can qualify for FMLA leave, even when the donor is in good health before the donation; and
   
   
2. Whether the organ donor can use FMLA leave for post-operative treatment.

In its opinion letter, the DOL indicated that an organ donation can qualify as an impairment or physical condition that is a serious health condition under the FMLA when it involves either continuing treatment or inpatient care. The DOL further explained that organ donation commonly requires overnight hospitalization, and that hospitalization alone enables both the surgery and the post-surgical recovery period to qualify as a serious health condition eligible for protection under the FMLA. 

Opinion Letter FMLA 2018-2-A is available here.