The Gift of Life:
Organ and tissue donations are gifts that save and heal thousands of lives each year. The Iowa Donor Network reports there are over 114,000 people in the United States on the transplant waiting list as of December 2018, including over 600 people in Iowa. Nebraska Organ Recovery reports that one organ donor can save eight lives and one tissue donor can improve the lives of over 100 people. This issue of organ donation by an employee and coverage under the FMLA was recently addressed by the U.S. Department of Labor.
FMLA Requirements
The FMLA provides eligible employ- ees of covered employers to unpaid, job-protected leave for specified fam- ily and medical reasons. Eligible em- ployees may take up to 12 work weeks of leave in a 12-month period for, among other things, a “serious health condition” that renders the employee unable to perform the functions of his or her job. The FMLA defines a “seri- ous 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.”
Request for DOL Opinion The U.S. Department of Labor Wage and Hour Division (WHD) issued an opinion letter concerning whether organ-donation surgery can qualify as a “serious health condition” under the Family and Medical Leave Act of 1993 (FMLA). FMLA2018-2-A (Au- gust 28, 2018). The employer asked WHD whether an employee who do- nates an organ can qualify for FMLA leave, even when the donor is in good health before the donation and chooses to donate the organ solely to improve someone else’s health.
“Inpatient care” is defined as “an overnight stay in a hospital, hospice or residential medical care facility, including any period of incapacity . . . or any subsequent treatment in connection with such inpatient care.” “Continuing treatment” under the regulations includes “incapacity and treatment,” “chronic conditions,” “permanent or long-term conditions,” and “conditions that require multiple treatments.” “Incapacity” means the “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.” “Treatment” includes “ex- aminations to determine if a serious health condition exists and evalua- tions of the condition.” An employee is incapacitated under the FMLA if he or she is “unable to work at all or is unable to perform any of the essential functions of the employee’s position,”
FMLA Qualifying Event? WHD Opinion
WHD found an organ donation can qualify as an impairment or physical condition that is a serious health condition under the FMLA when it involves “inpatient care” or “con- tinuing treatment” as defined in the implementing regulations. The organ donation as described to WHD would qualify as a serious medical condition whenever it results in an overnight stay in a hospital. WHD acknowledged that it is not the only means for organ donation to involve “inpatient care” or “continuing treatment.” Accordingly, WHD found organ -donation surgery, which commonly requires overnight hospitalization would qualify as a serious health condition under the FMLA, since donors usually stay in the hospital for four to seven days after surgery.
Conclusion
This opinion letter gives INEDA mem- bers guidance on when an employee requests time off in order to donate an organ as to his or her eligibility for leave under the Family and Medical Leave Act, even if the donor is in good health prior to the organ donation. It is a good reminder to INEDA members that if the situation with an eligible employee meets the definition of “serious health condition” it should be treated as such, even if the serious health condition resulted from an “elective” surgery.
Editor’s Note: This article is not intended to provide legal advice to our readers. Rather, this article is intended to alert our readers to new and developing issues and to provide some common sense answers to complex legal questions. Readers are urged to consult their own legal counsel or the author of this article if the reader wishes to obtain a specific legal opinion regarding how these legal standards may apply to their particular circumstances. The author of this article, Jerry L. Pigsley, can be contacted at 402.437.8500 or jpigsley@wood-
saitken.com; or at Woods & Aitken LLP, 301 S. 13th Street, Suite 500, Lincoln, NE 68508-2578.
Jan/Feb | The Retailer Magazine | 21
By JERRY L. PIGSLEY, Woods & Aitken LLP
including when the employee “must be absent from work to receive medi- cal treatment.”
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