The U.S. Department of Labor (“DOL”) has released Opinion Letter FMLA 2018-2-A confirming that organ donation surgery can qualify as a “serious health condition” that is eligible for protection under the Family and Medical Leave Act of 1993 (“FMLA”). The DOL’s opinion comes in response to an inquiry it received from Congresswoman Jaime Herrera Beutler (R-WA, 3rd District).
In 2016, Beutler’s husband donated one of his kidneys to their daughter who was born without kidneys. Beutler subsequently authored an appropriations funding bill provision to require DOL to rule on whether organ donation was protected under the FMLA. In connection with this process, Beutler requested that the DOL confirm: (i) whether an employee who donates an organ can qualify for FMLA leave, even when the donor is in good health before the donation; and (ii) whether the organ donor can use FMLA leave for post-operative treatment.
The FMLA entitles eligible employees of covered employers to unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take 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.”
In Opinion Letter FMLA 2018-2-A, the DOL clarified 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 alone suffices for the surgery and the post-surgery recovery to qualify as a serious health condition eligible for protection under the FMLA.
By issuing Opinion Letter FMLA 2018-2-A to confirm that organ donors may be eligible for FMLA leave, the DOL has provided important clarity to employers and individuals wishing to donate organs without jeopardizing their employment.
Opinion Letter FMLA 2018-2-A is available at: https://www.dol.gov/whd/opinion/FMLA/2018/2018_08_28_2A_FMLA.pdf