Cosmetic surgery and FMLA

GLC · July 2002

We have an employee who is having some cosmetic surgury, and I know it is not covered under FMLA unless complications arise. My question is...the doctor does not want this employee to work for more than 3 days to recoup. Since FMLA does cover an employee off from work for more than 3 days and under a doctor's care, would this be FMLA even though it is a cosmetic procedure.

Janet · July 2002

You've really answered your own question--the absence relates to non-covered plastic surgery. Therefore, FMLA is not warranted.

GLC · July 2002

Even though the employee meets the other definititon of FMLA...being off from work for more than 3 days, this would still not constitute FMLA. Where do you make the judgment if an employee meets one definition of the regulations, but not both.

Don D · July 2002

I've not seen anything in the regs that excludes elective surgery from being FMLA qualified. Unless I'm wrong (please correct me, and I know you will) it's your group health plan that probably shows elective surgery as a non-covered procedure. If the doctor certifies your paperwork as her absence being medically necessary and she's out more than three days, or either spends a night in the hospital, I think she's FMLA eligible. Wake me up if I slept through this part of the regs.......x:-)

GLC · July 2002

The regs state cosmetic surgery is not covered...825.114.

Don D · July 2002

Thank you for waking me up! I DID sleep through that part of the regs.

behp · August 2002

>Thank you for waking me up! I DID sleep through that part of the regs.

I reviewed that section of the regs and it says (c) 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. To me, that doesn't mean cosmetic treatments are not covered under FMLA. It means they are not covered if they don't require inpatient hospital care, etc. Do you disagree?

What do you think about elective surgery (as opposed to cosmetic?)

Jesica · January 2003

Is a vasectomy considered a serious health condition therefore, allowing this employee to recieve FMLA. (He had the surgery and was off work 5 days)

Don D · January 2003

Ouch! I would think that such a procedure is indeed covered given the facts you state. Whether elective or not (some may be medically indicated as necessary), if the physician certification indicates the operation and recovery period you stated, it's FMLA qualified. I see no qualification difference in this procedure and an elective tubal ligation, neither of which is cosmetic surgery, for sure. I also think that even though cosmetic surgery is specifically excluded in the Act, if the employee's condition complicates and results in a subsequent period of treatment to correct those complications, we might have to certify that additional period. The common cold is typically not qualified under FMLA; however, a common cold that leads to infection, extended bedrest and surgery would surely be. What's the difference?

Cosmetic surgery and FMLA

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