FMLA compliance guidelines clarifying leave under the Family and Medical Leave Act were issued by the Department of Labor (“DOL”) on August 28, 2018 in the form of two opinions.
FMLA 2018-1-A addresses how employers can comply with the FMLA when calculating points for absences and tardiness under a no-fault attendance policy.
FMLA 2018-2-A concerns whether an employee qualifies for FMLA leave when donating an organ. These two FMLA compliance opinions help to guide employers and their employment defense attorneys on how to assess their attendance policies and how to recognize a specific medical procedure under FMLA.
Protected Leave under No-Fault Attendance Policies
In the first FMLA compliance opinion, the DOL evaluated whether a no-fault attendance policy violates FMLA. As FMLA 2018-1-A points out, no-fault attendance policies are not discriminatory unless they factor in FMLA absences. Altogether, FMLA absences must be exempt from being calculated under a company’s attendance policies regardless if the policy factors in the reasons why an employee is absent or if it considers employee absences under a no-fault policy. Indeed, no-fault does not mean no exceptions.
At the same time, the FMLA 2018-1-A clarifies that “such practices do not violate FMLA, as long as employees on equivalent types of leave receive the same treatment.” While complying with the FMLA in terms of providing exceptions to employees on FMLA leave, employers must consider how they treat employees on similar leave even if their absences do not qualify under FMLA (FMLA 2018-1-A).
As the opinion establishes, a FMLA approved absence can be recognized as equivalent to another type of leave. In addition to assessing how they treat employees on protected leave, employers must consider how they treat employees on similar leave even if those employees are not entitled to protection under the FMLA.
Organ Donation Can Be Protected Leave
In addition to looking at how FMLA protected leave should be factored into a no-fault attendance policy, DOL also considered, in their second FMLA compliance opinion, whether a specific medical condition qualifies for FMLA leave.
In FMLA 2018-2-A, the DOL considered whether an organ donation is a protected absence under FMLA. In doing so, the DOL considered whether it is a “serious health condition,” and subsequently whether an employee is permitted to leave under FMLA for post-operative treatment (FMLA 2018-2-A).
The DOL opinion notes that 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.” 29 U.S.C. § 2611(11).
In terms of a “serious health condition,” FMLA 2018-2-A establishes that one of the following elements must be met: (1) organ donation must require “inpatient care” pursuant to §825.114 or (2) organ donation must involve “continuing treatment” in accordance with §825.115. If an employee can establish either element, the employee’s organ donation can qualify for FMLA leave in terms of a ‘serious health condition.’ (FMLA 2018-2-A).
With these recently issued opinions from the DOL, employers can self-assess their attendance policies and how they recognize medical conditions that qualify under FMLA when considering employees absences. All in all, employers must consider how they recognize a medical condition protected under FMLA and subsequently how they calculate related absences under a no-fault policy.
What this Means for Employment Defense Law Firms and EPLI Panel Counsel
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