So your employee notifies you that he is having cosmetic surgery and will need to be off of work for a few weeks. He wants to use his vacation time to cover his absence. You can’t help but be a little irritated because he knows you’re a little short staffed right now and his absence will really put stress on operations. You ask him if he can postpone the surgery for a little while until new employees are hired and trained and he says no. Can you deny him the time off based on your policy that vacation requests may be denied due to operational needs?
As a good lawyer, the answer really is that it depends. He may qualify for FMLA leave.
Run of the mill cosmetic day surgery, without complications, is likely not covered by the FMLA definition of a “serious health condition”. So an employee’s absence for liposuction, or dental implants, for instance, generally does not fall under FMLA protection. A big caveat exists though. The Department of Labor’s Guidance suggests that cosmetic surgery that is restorative from an injury or illness, such as reconstructive surgery is always defined as a serious health condition of the employee and an absence for such would be protected. Additionally, any procedure that may require recovery for more than three days-and we’re not talking about staying home until the bruising goes away, but actual physical recovery-is likewise going to be considered a serious health condition under the FMLA. Finally, any absence resulting from complications of cosmetic surgery that otherwise would not result in FMLA coverage would become covered as a result of the complication causing the absence.
Employers should avoid giving knee-jerk denials to leave requests for elective surgery as some may actually qualify for FMLA leave. Always ask your employee to have his or her doctor complete the medical certification before evaluating whether the employee is eligible for FMLA.
