September 6, 2018

DOL Opines on FMLA and Wellness Program Matters; Re-issues Model FMLA Forms (article)

Even in the absence of confirmation of an individual to lead the Department of Labor (DOL) into the future, the agency carries on its duties and responsibilities by providing advice to employers in the form of advisory opinion letters.  The DOL’s Wage and Hour Division (WHD) recently released several opinion letters addressing matters relating to voluntary wellness program activities, and Family and Medical Leave Act (FMLA) issues.  In addition, the DOL recently updated several model FMLA forms reflecting a revised expiration date.

Notable Opinion Letters

  • Compensability of time spent voluntarily attending benefit fairs and certain wellness activities

The DOL was asked to provide guidance on whether time used for wellness activities is compensable.  Generally, all time worked by individuals covered under the Fair Labor Standards Act (FLSA) is compensable. 

In this instance, the wellness program is completely voluntary.  An individual could earn premium discounts for participating in a variety of things such as biometric testing, attending an in-person health education class, taking an employer-facilitated gym class or using the employer-provided gym, participating in telephonic health coaching and online health education classes through an outside vendor facilitated by the employer; participating in Weight Watchers, or voluntarily engaging in a fitness activity.

This Opinion Letter (FLSA2018-20) affirms that this type of time need not be compensable, as long as the individual is not, in any way, compelled to be available for work during this time.  The Letter does note that the FLSA rules relating to compensable break time would continue to apply if the individual engages wellness activities during his/her break time.

  • Organ donation qualifies as FMLA entitlement event

In Opinion Letter FMLA2018-2-A, the DOL affirms that an otherwise healthy individual who becomes an organ donor can be entitled to the rights and benefits of the Family and Medical Leave Act (FMLA) based on the facts that an individual would be under the continuing care of a health care provider; and, in most instances, would have an overnight stay in the hospital during the process. Note, all of the other requirements for FMLA eligibility would apply; specifically, to be eligible for FMLA, the individual must meet all of the following criteria:

  1. At least 12 months of service for the employer; 
  2. At least 1,250 hours of service for the employer during the 12 months immediately preceding the leave; and  
  3. Service for the employer at a worksite subject to the law (a worksite is exempt from the FMLA if not more than 50 employees are employed within 75 miles of the location). 
  • Interaction of No Fault Attendance Policies and FMLA

Another FMLA Opinion Letter (FMLA2018-1-A) affirms that a no-fault attendance program that is suspended during FMLA leave is permissible as long as such no fault attendance program is likewise suspended during a non-FMLA leave of absence. Generally, only health benefits must be continued during a period of FMLA leave.  For other types of employer provided benefits, the individual must be treated in the same manner as he/she would be if the leave was not designated as FMLA leave.

Model FMLA Forms Reissued

The DOL’s Wage and Hour Division provides model Family and Medical Leave Act forms that can be used by employers to assist in satisfying their notice obligations, such as the obligation to provide information to employees of their eligibility, rights and responsibilities under the law, as well as the certification form to report the need for FMLA leave in the event of an employee’s or his/her family member’s serious health condition or for military leave purposes. 

The DOL reissued the model FMLA forms with a revised expiration date of August 31, 2021.  Important to note that the actual substance and contents of these model forms have not changed.  Still, employers are encouraged to use these revised forms in administering their FMLA obligations.  Following are the relevant FMLA forms with the revised expiration date:


The information contained in this article is provided as general guidance and may be affected by changes in law or regulation. This article is not intended to replace or substitute for accounting or other professional advice. Please consult a CBIZ professional. This information is provided as-is with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein. 

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