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A question came up recently: Does time off for weight loss surgery fall under the FMLA? In short, it certainly could.

When it comes to the Family and Medical Leave Act (FMLA), let’s first dispel the myth that employees are not allowed to take FMLA leave for elective procedures. They may. Like any situation involving an employment law, much would depend upon the facts involved, such as whether the surgery resulted in a serious health condition, or a serious health condition existed before the surgery.

Just because a procedure is elective does not mean it does not qualify for FMLA protections. An employee could, for example, elect to donate a kidney. The procedure would result in the employee having a serious health condition and, therefore, the reason for absence would qualify for FMLA protections. Assuming the employee meets the eligibility criteria, the employee would be entitled to the FMLA leave.

FMLA and weight loss surgery

When it comes to weight loss surgery, an employee may have been perfectly healthy before the procedure, so the surgery itself might not be required due to the employee’s health reasons. An employee might, however, have underlying health conditions prompting the procedure.

It’s true that conditions for which cosmetic treatments are given (such as most treatments for acne or certain types of plastic surgery) are not serious health conditions unless inpatient hospital care is needed or complications develop. This caveat generally points to the definition of a serious health condition (inpatient care or continuing treatment). Therefore, if the treatment results in a serious health condition, it qualifies for FMLA protections.

The bottom line is, if you have an employee who needs time off for weight loss surgery that requires an overnight stay in a health care facility, the reason for the absence would qualify for FMLA protections. If the employee is incapacitated for more than three days and receives treatment twice, the reason would also qualify for FMLA protections.

What to do

As with any type of FMLA case, if an employee puts you on notice of the need for leave for elective surgery, including weight loss surgery, treat it as you would any other notice of the need for leave. Provide an eligibility/rights and responsibilities notice, and request a medical certification.

The certification should give you the information needed to determine if the employee has (or will have) a serious health condition.

If the certification indicates that the employee has not had or does not need an overnight stay, move on to whether the employee will be incapacitated for more than three days and will need continuing treatment. Continuing treatment would need to involve treatment at least once, followed by a regimen of continuing treatment (such as a prescription or therapy), or treatment at least twice.

Key to remember: Don’t discount leave for elective surgery without consideration. It very well could qualify for FMLA protections.