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Yes, organ donation can qualify for FMLA leave

Even if it is elective

Posted September 20, 2018

After a nine-year hiatus, the Department of Labor’s (DOL) Wage and Hour Division (WHD) provided a handful of opinion letters, and one of them (FMLA2018-2-A) addressed whether organ donation would qualify for protections under the Family and Medical Leave Act (FMLA) for the donor.

In the letter, the WHD 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 “inpatient care” or “continuing treatment.”

Therefore, an organ donation would qualify as a serious medical condition whenever it results in an overnight stay in a hospital (“inpatient care”). Of course, that is not the only means for organ donation to involve “inpatient care” or “continuing treatment.” Organ-donation surgery, however, commonly requires overnight hospitalization, and that alone suffices to render the surgery and the post-surgery recovery to qualify as a serious health condition.

As usual, the name of the condition or procedure is not generally the determining factor as to whether an employee or family member has a serious health condition. The determining factor is whether it meets the regulatory definition of a serious health condition. Whether the employee or family member volunteered for the procedure does not matter. Elective procedures can result in serious health conditions.

Therefore, when an employee donates an organ, even when the donor is in good health before the donation and chooses to donate the organ solely to improve someone else’s health, the focus should be on whether the condition meets the definition of a serious health condition.

You may request a certification supporting the need for leave for organ donation. The certification should provide you with enough information to determine whether the condition is a serious one qualifying the reason as FMLA leave.

Employment Law Essentials ManualJ. J. Keller's Essentials of Employment Law Manual covers more than 100 vital HR topics, including FMLA, ADA, HIPAA, FLSA, COBRA and more.


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