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Breast Augmentation and FMLA

Does FMLA cover breast augmentation with no other serious health conditions associated to this?

The federal Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 workweeks within a 12-month period of job protected, unpaid leave for a serious health condition that makes the employee unable to perform the essential functions of his job.

The FMLA regulations define a serious health condition as an illness, injury, impairment, or physical or mental condition that involves:
• any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
• a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
• any period of incapacity due to pregnancy, or for prenatal care; or
• any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
• a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or,
• any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

Generally, cosmetic surgeries such as breast augmentation are not considered a serious health condition. Under FMLA regulations, conditions for which cosmetic treatments are administered such as most treatments for acne and plastic surgery are not serious health conditions unless inpatient hospital care is required or complications develop. Thus, whether the leave qualifies under the FMLA would depend in part on whether the employee needs to stay overnight at a hospital or whether the surgery causes complications that then rise to the level of a serious medical condition as defined above. Additionally, reconstruction surgery following an injury or illness will most likely be considered a serious health condition provided all the other conditions are met. For example, an employee in need of a breast reduction due to chronic back pain may qualify for leave under the FMLA.

The best approach to an employee’s request for FMLA leave due to a cosmetic procedure is to use the FMLA’s certification process before denying the request. Under the FMLA, the employer may require the employee to submit a certification from a health care provider to support the need for FMLA leave for the employee’s serious health condition. Keep in mind, the employer’s notice must be included in the written notice of FMLA rights and responsibilities given to the employee when leave is first requested.


This entry was posted on Tuesday, August 12th, 2014 at 12:53 pm and is filed under
Labor Laws.
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