Determining whether an employee is entitled to FMLA leave

Q: We have an employee who had elective weight loss surgery without complications and is off work for two weeks to recover. Does the Family and Medical Leave Act (FMLA) apply?

The FMLA’s definition of a serious health condition and the reason for the employee’s elective weight loss surgery are both key to determining whether this employee is entitled to FMLA leave.

Employees may be entitled to FMLA leave if a serious health condition makes them unable to perform the functions of their job. A “serious health condition” is an illness, an injury, an impairment, or a physical or mental condition that involves either inpatient care or continuing treatment by a healthcare provider. The FMLA regulations state cosmetic treatments aren’t serious health conditions unless inpatient care is required or complications develop.

So, your employee likely wouldn’t be entitled to FMLA leave if they elected to have outpatient, cosmetic surgery simply because they were unhappy with their appearance. If, however, the surgery required them to stay overnight at the hospital, or if they developed a complication such as an infection from surgery, they could be eligible for leave regardless of whether they elected the surgery for cosmetic reasons.