Elective Organ Donations are Covered under the FMLA

The U.S. Department of Labor (“DOL”) recently opined in a published opinion letter that elective organ-donation surgery can qualify as a “serious medical condition” under the Family and Medical Leave Act(“FMLA”).  See U.S. Dep’t of Labor, Wage & Hour Div., Opinion Letter (Aug. 28, 2018). The surgery qualifies as a serious medical condition if it involves either “inpatient care” or “continuing treatment,” as defined in the FMLA. Id; 29 CFR § 825.102. This opinion letter demonstrates the importance of understanding how the term “serious medical condition” is used in the FMLA.

Under the FMLA, “serious medical condition” does not refer to the severity of the employee’s medical condition. 29 CFR 825.113. Rather, serious medical condition is a term carefully defined by the statute, as “an illness, injury, impairment or physical or mental condition that involves inpatient care…or continuing treatment by a health care provider…” Id.

The key takeaway from the DOL’s opinion letter and the text of the statute is that elective surgery may qualify for FMLA leave if the surgery requires an overnight stay in the hospital or meets other eligibility criteria. Other considerations will also determine an employee’s eligibility for leave such as the number of people that you employ and the length of time the employee has worked for the organization. 29 CFR 825.104; 29 CFR 825.110. If an employee is covered under the FMLA, they are entitled to twelve weeks of unpaid leave. 29 CFR 825.100(a). Employers are also prohibited from retaliating against employees for exercising their rights under the FMLA. 29 CFR 825.100(c).

If you are unsure if your employee, or their condition, is covered by the FMLA, contact ELS, an one of our experienced employment counsel will ensure your company remains compliant.

Additional note: The DOL has extended the current FMLA certification forms and notices, which are valid for three more years, until Aug. 31, 2021. Forms can be found on the DOL’s website:  https://www.dol.gov/whd/fmla/forms.htm

~ Author: Holly McDaniel, 2018 ELS Extern, Emory University School of Law, 3rd Year Law Student