Information on FMLA for Elective Procedures
The Family Medical Leave Act was initially introduced in 1993 and revisions to the act became effective in early 2009. An employee need not even mention the FMLA to be eligible for leave, and it is the employer's responsibility to make the initial determination if the leave is potentially FMLA qualifying. It would be impossible to list all conditions that may or may not be qualified by the act, so employers frequently have to determine whether a certain procedure -- such as elective surgery -- constitutes a FMLA qualifying reason for leave.
Other People Are Reading
-
FMLA - The Basics
-
To be eligible for leave under the FMLA, employees must have worked a minimum of 1,250 regular hours -- not including overtime -- in the previous 12 months and have also worked for the employer for at least 12 months in total, although not necessarily consecutively. Employees may request leave for their own "serious health condition" or the serious health condition of their spouse, parent or child. Other types of leave for bonding and military reasons are also available.
Serious Health Condition
-
The FMLA Code of Federal Regulations (CFR 825.113 a) defines a serious health condition as an "illness, injury, impairment or physical or mental condition that involves inpatient care...or continuing treatment by a health care provider." The regulations clarify that a period of incapacity due to treatment and recovery from such treatment, including "restorative surgery," qualifies as a serious health condition.
-
Elective Procedures
-
The FMLA rules do specifically delineate procedures that are not considered a serious health condition. CFR section 821.113 (d) specifies that "cosmetic treatments" such as acne treatments and "plastic surgery" are not serious health conditions. If complications arose, then the complications could be considered a serious health condition under the act. Additionally, if the surgery is one that requires "inpatient hospital care" -- defined by the regulations as an overnight stay -- then it likely qualifies as a serious health condition.
Restorative Surgery
-
The Federal regulations (CFR section 825.113 d) state that "restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this regulation are met." Therefore, if the condition for which the employee is undergoing elective surgery was in itself a serious health condition, then the surgery is covered under the act. In some situations, such as bariatric surgery, the determination of the underlying condition differs between individuals. If doubt exists regarding the status of a surgery or condition, the legislation allows the employer to ask the employee's medical provider to certify whether the procedure constitutes a serious health condition for the purposes of FMLA.
-
