My employee is requesting CFRA/FMLA leave to have elective surgery. He is potentially eligible for leave because he has worked full-time for us for more than three years. Does elective surgery qualify for CFRA/FMLA leave?
The answer is “yes” if the procedure is related to a medical condition that otherwise qualifies as a “serious health condition” under the CFRA/FMLA. Protected leave cannot be denied simply on the basis that the employee is having an elective procedure.
CFRA/FMLA Leave for Serious Health Conditions
The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) entitle eligible employees to take up to 12 weeks of unpaid leave per 12-month period for an employee’s own “serious health condition.”
The FMLA covers employers with 50 or more employees within a 75-mile radius; the CFRA covers employers with five or more employees.
A serious health condition is an illness, injury, impairment, or physical or mental condition involving either inpatient care in a hospital, hospice, or residential health care facility or continuing treatment or supervision by a health care provider.
The employer must continue the employee’s health benefits during the leave and return the employee to their same or comparable position at the end of the leave.
Elective Procedures
Elective surgery refers to surgery that is not considered an emergency or medically necessary. It typically is scheduled in advance and performed based on a patient’s request and their doctor’s recommendation. Examples of elective surgeries include weight loss surgery, hip and knee replacements, and LASIK eye surgery.
For a medical procedure to be covered under the CFRA/FMLA, the key issue is whether the employee has a serious health condition, not whether they are electing to have a procedure performed for a medical condition.
For example, if you have an employee who needs time off for a hip replacement that requires an overnight stay in a health care facility or continued treatment, the absence will likely qualify for CFRA/FMLA protections.
Neither the CFRA nor the FMLA reference “elective” procedures. The FMLA provides in its regulations that “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.” (Code of Federal Regulations, Title 29, Section 825.113(d)).
The regulation makes clear, however, that a hospitalization or complications would make the procedure covered.
Leave Certification Procedure
Employers should have clear procedures in place when an employee requests a leave of absence that may qualify for CFRA/FMLA protection. Under all circumstances, it is the employer’s responsibility to designate leave as CFRA/FMLA based on information provided by the employee. The employee need not expressly refer to the CFRA/FMLA. (California Code of Regulations, Title 2, Section 11091(a)).
When an employee requests CFRA/FMLA leave or when an employer learns that requested leave may be for a CFRA/FMLA-qualifying reason, the employer must respond within five business days and provide the employee with notice of their rights and the correct designation forms. The forms for 5–49 employees and 50 or more employees are available on HRCalifornia.
As a condition of granting leave, the employer may require certification of the serious health condition. See the Certification of Health Care Provider — Employee’s or Family Member’s Serious Health Condition form on HRCalifornia.
Employers also may require employees to provide them with at least 30 days’ advance notice of planned medical care unless such notice is impractical. The fact that advance notice can be required itself demonstrates that elective procedures are covered.
It is critical that employers not automatically deny requests for CFRA/FMLA leave because the employee is having an elective procedure. The fact that it is elective does not disqualify it from protected leave consideration.
As situations surrounding CFRA/FMLA leave can be quite complicated, it is always recommended that employers consult with their employment law attorney to determine the most appropriate course of action.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
