Last week, the U.S. Department of Labor (DOL) issued six advisory opinion letters offering employers guidance on the application of the Family and Medical Leave Act (FMLA) to organ donors and a no-fault attendance policy. Employers may want to check the letters out for themselves, but here is a summary of what they said:
Organ Donors Can Take FMLA Leave
The DOL stated in one of its letters that organ donors can take FMLA leave. The FMLA allows an employee to take up to 12 weeks of unpaid leave to care for their own serious health condition or the serious health condition of a family member. The DOL stated that even though organ donations are elective surgeries, they nonetheless qualify as a serious health condition, and therefore someone donating an organ can take FMLA leave.
No-Fault Attendance Policy Complies with FMLA
The DOL also held that an employer’s no-fault attendance policy did not violate the FMLA. Under the policy, employees accrued points for tardiness and absences, except for certain absences, including FMLA-protected leave. The points remained on an employee’s record for 12 months, and the employer would extend that that period for any time the employee spent not in “active service,” such as during FMLA leave. An employee would be fired if he or she accrued 18 points.
The DOL concluded that freezing an employee’s attendance points while on FMLA leave did not violate the Act. The FMLA prohibits employers from penalizing employees for taking FMLA leave, but the DOL said that freezing the employee’s attendance points was not a penalty.
Employers Are Not Required to Pay for Voluntary Participation in Wellness Screenings
In a third letter, the DOL held that employers do not have to pay employees who voluntarily choose to participate in biometric screenings, wellness activities, and benefit fairs. It held that employers do not need to pay for voluntary participation in programs which predominately benefit the employee and in which employees did not need to perform any job-related duties.
Guidance on FLSA Overtime and Volunteer Exemptions
The DOL also issued two letters discussing FMLA overtime exemptions. One letter concluded that overtime did not have to be paid to employees who sold an internet payment software platform. The other letter stated that employees working in movie theaters that offer in-theater dining are also exempt from having to pay overtime. A third letter stated that workers who assisted a nonprofit organization with grading a credentials exam qualified as volunteers who did not require compensation.