Nearly 115,000 people are currently waiting for lifesaving organ transplants, 22 of whom die every day without seeing their needs fulfilled. Every ten minutes another individual is added to the waiting list.
Many times, successful organ donation involves healthy donors risking their own health and possibly experiencing ripple effects throughout life. They may find themselves unable to work or subject to work limitations they may not anticipate following the donation procedure. In many cases, a donor may want to take leave from employment to recover.
According to a new letter issued by the U.S. Department of Labor (DOL), this leave should be protected under the Family and Medical Leave Act (FMLA) so long as the donor’s situation involves inpatient care and/or continuing treatment.
What Leave Is Covered by the FMLA?
The Family and Medical Leave Act allows eligible employees to take up to 12 weeks per year of unpaid, job-protected leave for various family and medical reasons, including their own serious health conditions. To qualify, an employee must work for a covered employer; these include public agencies (state, local, and federal employers as well as local education agencies) and private sector employers who employ 50 or more employees. Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months (pursuant to FMLA computing principles), at a location where the company employs 50 or more employees within 75 miles.
A qualifying “serious health condition” under the FMLA is an illness, injury, impairment, or physical or mental condition that involves either inpatient care (i.e., an overnight stay in a hospital, hospice, or residential care facility) or continuing treatment by a healthcare provider. Among other exceptions, the FMLA specifically does not cover leave related to voluntary, cosmetic procedures (unless inpatient care is required and unless complications arise). In order to take advantage of FMLA benefits, a covered employee must submit a form from a qualified health care provider certifying that, based upon the medical facts that are disclosed, the employee has a serious health condition. An employer is not allowed to ask for a diagnosis and there is no inquiry into whether the treatment is reasonable or necessary.
Why Would Organ Donation Be an Issue?
Whether FMLA leave applies to an organ donor could be a grey area because of the way the law is worded. Healthy employees who wish to donate an organ may not, prior to the procedure, be suffering from a serious health condition or “continuing treatment” that would avail them of the protection of the law before the procedure occurs.
The U.S. Department of Labor (DOL) addressed this issue in a recent opinion letter, finding that FMLA leave could be appropriate to an employee who is a voluntary donor. The agency specifically noted that inpatient care is likely necessary for a voluntary, healthy organ donor to recover from the procedure, which brings the leave within the purview of the FMLA. If the organ donation does not involve inpatient care, it must include continuing treatment after the donation that meets the criteria contained in the FMLA to qualify for covered leave.
Requesting, calculating, and using FMLA leave can be complicated in the best of situations. If you’re planning to donate an organ or if you administer your workplace’s handbook and policies and wish to review procedures to ensure proper compliance, please contact us today.