On August 28, 2018, the Department of Labor (DOL) issued an opinion letter (No. 2018-2-A) finding that organ donation surgery can qualify as a serious health condition under the Family and Medical Leave Act of 1993 (FMLA), even where the donor is in good health before the donation and chooses to donate the organ solely to improve someone else's health.
FMLA entitles eligible employees of covered employers to unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take up to 12 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. An employer may request medical certification from a health care provider concerning the serious health condition that is the basis for the FMLA leave request. When requested, medical certification is a basic requirement for FMLA-qualifying leave for a serious health condition, and the employee is responsible for providing such certification to his or her employer.
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." Implementing regulations define inpatient care 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...