The United States Department of Labor (“DOL”) has just issued an Opinion Letter concluding that organ-donation surgery can qualify as a “serious health condition” under the FMLA.  Specifically, the Opinion Letter affirmatively answered whether an employee may use FMLA leave for post-operative treatment where the employee donates an organ, even when the donor is in good health before the donation and chooses to donate the organ solely to improve someone else’s health.

The Opinion Letter clarified that where an employee-donor’s situation involves inpatient care and/or continuing treatment, his or her condition would qualify as a serious health condition under the FMLA. The DOL further explained that the FMLA defines a serious health condition, which would render an employee unable to perform the basic functions of a job, “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.'”

Given that the organ donor at issue in the Opinion Letter was a healthy individual, many employers might be inclined to deny FMLA leave to such individual. The Opinion Letter, therefore, serves as a reminder of the complexity of handling and responding to FMLA requests, and the need for employers to carefully assess and respond to leave requests on a case-by-case basis. Where issues are particularly unique and less than clear, employers should consult with counsel before taking action.