On August 28, 2018, the U.S. Department of Labor issued an opinion letter stating organ donation surgery can qualify as a “serious health condition” under the Family and Medical Leave Act of 1993.

Powers Principals Peggy Tighe and Diane Millman and Associate Christina Krysinski drafted a memorandum on behalf of American Society of Transplant Surgeons on the issue of FMLA coverage for organ donors after organ donation.

This memorandum was submitted along with a letter to the Department of Labor by Congresswoman Jaime Herrera Beutler (R-WA) asking whether an employee who donates an organ can qualify for FMLA leave, even when the donor is in good health before the donation, and if the organ donor can use FMLA leave for post-operative treatment.

The 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 work weeks of leave in a 12-month period for a serious health condition that renders the employee unable to perform the functions of his or her job. Currently, the 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.”

The Department of Labor’s response clarified that an organ donation can qualify as an impairment or physical condition that is a serious health condition under the FMLA when it involves either “continuing treatment” or “inpatient care,” such as an overnight stay in a hospital.  By confirming that organ donors may be eligible for FMLA leave, the Department of Labor provided important clarity to employers and individuals wishing to donate organs without fear that their jobs will be at risk.

The American Society of Transplant Surgeons represents approximately 1,800 professionals dedicated to excellence in transplantation surgery. Its mission is to advance the art and science of transplant surgery through leadership, advocacy, education, and training. To read the full response to ASTS, click here.

Powers Healthcare Attorneys

Peggy Tighe works closely with both the Healthcare and the Government Relations and Public Policy teams at Powers. She teams with health systems, patient groups, and provider organizations to develop persuasive policy arguments and strategies to influence Congress and relevant agencies, creating change to protect and support providers and the patients they serve. Peggy can be reached at Peggy.Tighe@PowersLaw.com or 202-872-6752.

Diane Millman is a principal in the firm’s healthcare practice. She represents physicians, ambulatory care providers and professional and trade associations before the Centers for Medicare and Medicare Services and other federal agencies, as well as before Congress on various Medicare and Medicaid payment, fraud and abuse, physician self-referral, and other issues arising under federal law. Diane can be reached at Diane.Millman@PowersLaw.com or 202-872-6725.

Christina Krysinski is in the Powers Healthcare practice group. She works on healthcare matters related to health information technology and privacy, the 340B program, reimbursement matters and healthcare policy. She joined Powers after earning her J.D., with honors, from The George Washington University Law School in 2017. Christina can be reached at 202-872-6732 or Christina.Krysinski@PowersLaw.com.

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