Elective Surgery and FMLA Leave




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The Family and Medical Leave Act provides employees for covered employers up to 12 weeks of unpaid annual leave for their own, or their immediate family members’, serious health conditions.  For an employee to be covered under the Act, they must have worked for the employer for at least twelve months, have worked at least 1,250 hours in the preceding twelve months, and work in a location where the employer has at least 50 employees within 75 miles of the worksite.

As a covered employer, how do you respond to a healthy, but otherwise-qualified employee who requests FMLA leave for an elective procedure such as cosmetic surgery?

Under the rules, “conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not ‘serious health conditions’ unless inpatient hospital care is required or unless complications develop.” Therefore, if the employee is requesting leave for a purely outpatient, cosmetic procedure, the procedure will not rise to the definition of “serious health condition” under the FMLA.  However, if the procedure requires an overnight hospital stay, or the employee suffers complications that themselves rise to the level of a serious health condition, the leave would be covered.

If a healthy, but otherwise-qualified employee agrees to donate an organ, that leave would definitely be covered under the FMLA, according to recent guidance from the Department of Labor.   This is because the FMLA defines a “serious health condition” as an “illness, injury, impairment, or physical or mental condition that involves … inpatient care in a hospital, hospice, or residential medical care facility.” “Inpatient care” means as “an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity … or any subsequent treatment in connection with such inpatient care.”  Because organ donation, without exception, requires an overnight hospital stay, the DOL has concluded that it qualifies as a serious health condition, and is eligible for FMLA-covered leave.

As with most situations that arise in the workplace context, each request you are confronted with is likely to be very fact-specific.  When in doubt, call your local employment attorney for advice.

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