United States: Nip/Tuck Leave: When Employees Take Leave For Elective Procedures

Seyfarth Synopsis: Employers are usually mindful of the many laws governing employee medical leaves and how they interact. But what about accommodation for non-medically necessary leaves? This post discusses the basics of employee leaves for elective medical procedures.

California employers who administer employee leave laws navigate a complicated labyrinth. Employers must consider interactions among federal laws (ADA, FMLA, Title VII), state and local laws (CFRA, FEHA, PFL), and even their own internal employer policies. It gets even more complicated when employees would like to take medical leave for procedures that aren't medically necessary, but rather are elective. So what is an employer to do when an employee says they want to take two weeks off for that nose job or tummy tuck?

"Tell Me What You Don't Like About" California Laws—The Basics

The FMLA and the CFRA both entitle qualifying employees to up to 12 weeks of unpaid leave per 12-month period for an employee's own "serious health condition" that prevents them from performing their essential job functions. A serious health condition is defined broadly as an illness or injury that involves inpatient care, a period of incapacity of more than three consecutive calendar days that also involves treatment by a health care provider, or a chronic condition requiring treatment. It follows then, that elective procedures in and of themselves do not qualify as a serious health condition that would require protected medical leave, absent some complication (discussed below).

Employers should also note that elective procedures aren't just limited to lifts and augmentations. Elective procedures fall within a broad range that includes such varied items as treatment for acne and orthodontics.

Whatever the reason for medical leave may be, an employer may require medical certification of the employee's serious health condition. If there is reason to doubt the validity of the certification, the employer can usually go so far as to get a second opinion. If an employee refuses or fails to provide the certification, the leave request could be delayed or even denied.

Importantly, under federal law, the medical provider can be asked to state the diagnosis or medical facts supporting the need for the leave; however, California law is different. Here, whether the leave is requested under CFRA or the FEHA, the employer is limited to obtaining a certification from a qualified provider that the leave is needed as an accommodation for a medical condition or disability, and the expected duration of the leave. This begs the question of how the employer is to know that the leave is for an elective procedure.  Since the employer cannot ask, the information is usually shared voluntarily by the employee or his/her medical provider.

You've Got A New Wrinkle?—Leave Complications

While the laws are clear that purely elective procedures aren't covered by FMLA/CFRA statutory leave, there is a complication: where a serious health condition arises out of an elective procedure. That is to say, an elective procedure can result in inpatient care in a hospital, where complications develop. In this situation, provided that the employer receives proper notice, employees may qualify for statutory protected leave.

Another wrinkle that employers should know is that restorative dental or plastic surgeries after an injury or removal of cancerous growths are considered serious health conditions for which protected leave is required, provided the presence of the other conditions constituting a serious health condition.

"Appearance Is Everything"—Post-Op Disability Leave Checklist

Frequently, employers face situations where an employee cannot return to work after a 12 week FMLA/CFRA medical leave is up. What's next?

This situation can trigger an interactive process under the ADA/FEHA, in which the employer and employee must work together to see what reasonable accommodations, if any, can enable the employee to perform the essential job functions. Strong interactive process procedures, including ongoing communication with the affected employee (where possible), are staunch tools in an employer's possible defense to some ensuing discrimination claim.

One possible reasonable accommodation may be a further leave of absence. But both the FEHA and the ADA allow an employer to avoid providing further leave of absence if it would be not be reasonable to do so. California courts have concluded that employers need not provide an indefinite leave of absence as a reasonable accommodation. Each case must be addressed on a case-by-case basis, and there is no one-size-fits-all solution when it comes to reasonable accommodations.  Moreover, a reasonable accommodation need not be provided if it would create an "undue hardship" for the employer.

Workplace Solution: Leave laws are complicated, as each leave law has its own intricacies, compounded when one considers the law's interactions with other law. So whether you're looking to makeover your current leave policies or augment your knowledge base, you can always contact your Seyfarth attorney to address any areas that need touching up.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Christopher Im
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