After a Nine Year Hiatus, the DOL Issues Two New FMLA Opinion Letters

The Department of Labor last issued an FMLA opinion letter in January of 2009, that is, until August 28, 2018, the day that the DOL issued two new Opinion letters dealing with the FMLA. As we have discussed in the past, when a regulatory agency issues an Opinion Letter or Guidance, it behooves us to take heed. They are the agencies’ way of telling us how they are going to construe the laws that they enforce. And, although such Letters and Guidance are not binging on civil courts, the courts often refer to them in their opinions.

FMLA20180-1-A – Organ Donor Leave:   In FMLA2018-1-A, the DOL stated that an otherwise healthy employee that chooses to donate an organ may be entitled to FMLA leave if the procedure and resulting recovery qualify as a  a Serious Health Condition. If the procedure and recovery do not meet the definition of a Serious Health Condition, the leave would probably not be covered by the FMLA. The fact that the procedure is voluntary is not relevant to the FMLA-qualification analysis.  As with most FMLA determinations, this requires a case-by-case analysis.

FMLA2018-2-A – Application of Disciplinary Point Systems to Employees on FMLA Leave:   In FMLA2018-2-A, the DOL addressed an employer’s no-fault attendance policy that suspends or “locks in” an employee’s disciplinary points while on FMLA leave. Under this policy, points rolled off every twelve months.  However, the employer locked in the points while its employees were out on any type of “protected” leave, such as FMLA, workers compensation, pregnancy, ADA…… The DOL stated that point reduction is a reward for working, and thus a benefit to which an employee on FMLA leave might not be entitled – as long as employees on other types of leave are treated the same.

This should give employers an additional tool to prevent employees who have almost accumulated a “terminal” number of points from taking FMLA leave in an attempt to allow some of their points to roll off whilst they are on leave. Keep in mind that the DOL’s blessing of this type of policy is based upon the fact that all types of protected leaves are treated similarly.

Don’t hesitate to contact me directly if you have questions concerning these or any other issues.

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