It was a busy week for the DOL — not only did the agency release a new set of FMLA forms for employers, but it wrote four opinion letters addressing several FMLA and FLSA concerns.
As far as the forms go, the only thing that changed is the expiration date. The updated FMLA forms are exactly the same as the previous set.
The opinion letters will be of more interest to employers, as they address tricky scenarios managers may run into when dealing with the FMLA or FLSA.
Here’s a rundown of the situations the DOL addressed in the letters:
1. Organ donation is covered under the FMLA
In FMLA 2018-2-A, an employer asked whether an employee could use FMLA leave for undergoing organ donation surgery. The DOL says yes. Even if the employee was in good health before the surgery, organ donation still qualifies as a “serious health condition,” and therefore is covered under the FMLA.
A serious health condition is defined as an illness or physical condition that requires inpatient care at a hospital. Since the typical hospital stay after organ donation surgery is four to seven days, this certainly qualifies as a serious health condition.
2. FMLA leave “freezes” no-fault attendance policies.
In FMLA 2018-1-A, an employer detailed its attendance policy. Employees would accrue points for absences, and if those absences added up to a certain number in a year, they’d be terminated. But employees could also shave some points off with consistent good attendance. The employer’s question? If an employee takes FMLA leave, does that mean they cannot accrue or lose any absence points?
The DOL said yes, employers are permitted to “freeze” the absence points of employees on FMLA leave. It’d be an FMLA violation to give employees absence points while on leave, but it’d also be an unfair benefit to remove points while employees were not working.
Note: This freezing policy must apply equally to all types of leave, such as vacation and worker’s comp.
3. Voluntary health and wellness events can be unpaid.
In FLSA 2018-20, an employer asked if employees needed to be paid for attending voluntary biometric screenings during the work day. The DOL says no. Since the event is voluntary, and is primarily for the benefit of the employee, it isn’t compensable. When an employee is attending a wellness event, they are relieved of their job duties.
4. Clarification on retail or service establishment exemption
In FLSA 2018-21, an employer wanted to know if the “retail or service establishment” exemption applied to sales reps at their business. The company sold a unique technology platform to a variety of clients, and not in large quantities. The DOL decided this type of business qualified for the exemption.
The retail or service establishment exemption says employees don’t receive overtime pay if they meet the following requirements:
- they work at a retail or service establishment
- their regular rate of pay exceeds one and a half times the minimum wage, and
- more than half their earnings consist of commissions.
Marijan Pavisic MS SPHR