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Nov10

FMLA and Donating an Organ

Does FMLA cover an employee who is donating an organ?

The federal Family and Medical Leave Act (FMLA) provides qualified employees of covered employers up to 12 workweeks of unpaid, job protected leave for specified family and medical reasons, including to care for one’s own serious health condition.

The FMLA defines serious health condition broadly to include any illness, injury, impairment, or physical or mental condition that involves either inpatient care) defined as an overnight stay in a hospital, hospice or residential medical care facility) or continuing treatment by a health care provider.

An employee can use FMLA leave for the time spent receiving inpatient care and for any period of incapacity or subsequent treatment connected to that care.

An employee who is incapacitated, meaning unable to perform regular daily activities like working, for more than three consecutive days is considered to have a serious health condition. However, a serious health condition only exists if the employee requires continuing treatment from a health care provider.

Continuing treatment from a health care provider means either of the following:

• At least two treatments by a health care provider, a nurse under the direct supervision of a health care provider, or a provider of health care services under order of, or on referral by, a health care provider. These treatments must both take place within 30 days of the first day of incapacity, and the first treatment must take place within seven days of the first day of incapacity, absent unusual circumstances.

• At least one treatment by a health care provider, followed by a regimen of continuing treatment under the provider’s supervision. This treatment must take place within seven days of the first day of incapacity.

Assuming the employee is otherwise qualified for FMLA leave, as long as the employee meets the above criteria for having a serious health condition, he is entitled to FMLA leave.

Also, keep in mind an eligible employee is entitled to take FMLA leave to care for a covered family member with a serious health condition. Covered family members include the employee’s spouse, son, daughter, or parent. Some states offer broader definitions of covered family members.

Even if the employee’s organ donation procedure isn’t considered a serious health condition as defined by the FMLA, the employee may still be entitled to leave to care for the covered family member receiving the donation who meets the criteria has having a serious health condition.

Lastly, many states have adopted leave laws for live donors. Make sure you’re aware of any applicable state laws.

This entry was posted on Tuesday, November 10th, 2015 at 9:49 pm and is filed under
Labor Laws.
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