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On August 28, 2018, the Department of Labor (DOL) to help develop a clearer understanding of what compliance with the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA) entails issued a number of opinion letters in response to fact-specific situations sent by members of the public.  Below is a brief overview of the more relevant opinion letters to employers.

  • Attendance Points Under the FMLA? – Allowed as long as they are applied in a nondiscriminatory manner compared to similar types of leave. 

More specifically, the DOL responded to a question about whether an employer’s no-fault attendance policy violated the FMLA.  The policy effectively freezes, throughout the duration of the employee’s FMLA leave, the number of attendance points accrued prior to taking FMLA leave. The DOL held that such a policy does not violate the FMLA, provided it is applied in a nondiscriminatory manner.  Translation: As long as employees who are on equivalent types of leave receive the same treatment, so their amount of attendance points are also frozen from the time they take their leave until the time they return, the employer is not unlawfully discriminating against employees taking FMLA leave.

  • Can Organ Donation Qualify for FMLA Leave? – Generally, yes.

The DOL held that an organ-donation surgery can qualify as a “serious health condition” under the FMLA, even if the employee is in good health and chooses to donate the organ solely to improve someone else’s health. The DOL identifies the main factors considered under FMLA as whether the organ donation requires the employee to undergo “inpatient care” or “continuing treatment,” at least one of which is likely satisfied because organ donation surgery commonly requires overnight hospitalization. Thus, an employee donating an organ can qualify for FMLA leave for both the surgery and post-surgery  recovery.

  • Pay Under FLSA for Employees to Attend Wellness Activities, Biometric Screenings or Benefits Fairs? – Not required if attendance predominately benefits the employee.

If an employee chooses to attend wellness activities to potentially decrease monthly insurance premiums, attend a biometric screening to learn more about their health, or attend a benefits fair to learn about financial planning, the DOL determined that time spent at these activities, even if it is during work hours, is not compensable worktime under the FLSA.  When coming to this conclusion, the DOL considered that such             activities provided direct financial benefit to the employee, not the employer;         participation was optional for employees; and employees were relieved of all job-related duties while they participated.

If you have any questions regarding the DOL opinions above, would like copies of the full opinion letters or would like to discuss related topics, please contact your Thompson Coe attorney at (651) 389-5000 or at  You can also find helpful information on past DOL opinion letters and much more at

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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