I recently had a member call to inquire as to whether their employee’s leave to donate bone marrow would qualify as covered FMLA leave. In this particular instance, the bone marrow donation was not directed at a specific family member (rather just a donation to a bank for qualified donors/recipients) and the donation wouldn’t require an overnight stay at a medical facility. When it comes to marrow/organ donation how does the FMLA view the leave?
First, you have to remove the emotional aspect from the decision. Donating marrow is clearly an exceptional act, however, you want to focus on whether it meets the qualifications necessary to be considered a serious health condition. Let’s review the six categories that a condition must fall in to meet a serious health condition as defined by the FMLA:
- Inpatient care
- Incapacity for more than three days with continuing treatment by a health care provider
- Incapacity relating to pregnancy or prenatal care
- Chronic serious health conditions
- Permanent or long-term incapacity
- Certain conditions requiring multiple treatments
So if we take bone marrow donation as an example, we can assume it would not meet the qualifications at face value since the employee will not be receiving inpatient or ongoing care. In essence, they will go for the transplant donation procedure and then may have some recovery time but can expect to go on with their normal activities. Organ donation may meet the qualifications based on the fact that the individual will probably have an inpatient care several day stay and potential follow-up treatments.
As with any procedure, if the individual develops complications from the transfusion or donation and needs to have additional care, the original donation might not have met the qualification at the time of the request but the complications may now qualify. An example would be an infection or surgical complication.
There are several states that have organ/marrow donation leave laws. North Carolina does not have an organ/marrow donation leave law for private employers. State employees may be given reasonable time off with pay for whole blood donation, pheresis procedures and bone marrow transplants. State employees may be given up to 30 days with pay for organ donation.
Bottom Line: As with any FMLA request, employers should review all of the request details and have a conversation with their employees to understand the circumstances regarding the request. Take the request and compare it to the items necessary to qualify for a serious illness under FMLA regulation. If it doesn’t meet the qualifications you can deny the request, but be prepared to offer another solution to the employee, for example, if the company offers personal leave or sick time that might help cover the leave. It’s important to have an open communication with the employee to help find the best solution for the business and your employee.
Complying with state and federal laws that affect your workplace is not always straight forward. That’s where CAI’s HR experts come in. Find out more about how CAI can help you in building an engaged, well-manged and low-risk workplace.
Emily’s primary area of focus is providing expert advice and support in the areas of employee relations and federal and state employment law compliance as a member of the Advice & Resolution team for CAI. Additionally, Emily advises business and HR leaders in operational and strategic human resources areas such as talent and performance management, employee engagement, and M&A’s. Emily has 10+ years of broad-based HR business partnering experience centering around employee relations, compliance & regulatory employment issues, strategic and tactical human resources, and strong process improvement skills.
Organ Donor Image Credit: Catherine Lane, 2015