Elective surgeries covered under the FMLA, but only with an overnight hospital stay

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?

If an eligible employee requests FMLA leave for surgery that requires or results in an overnight stay in the hospital, the leave request would meet the definition of a serious health condition even if the surgery is elective.

To confirm the employee must stay overnight in a hospital, you should require them to submit a medical certification from their healthcare provider. The U.S. Department of Labor (DOL) provides template certification forms that most employers use. They can be found here: https://www.dol.gov/agencies/whd/fmla/forms.

If there was no overnight stay or complications, however, elective weight-loss surgery may not constitute a serious health condition under the FMLA, so the Act may not apply.

Meaghan E. Murphy is an attorney at the firm of Skoler, Abbott & Presser, P.C. Meaghan can be reached at 413-737-4753 or mmurphy@skoler-abbott.com.