FMLA & elective surgery timing

chestnut

Can an employer designate when an elective surgery can be done so as to better work into the employer's schedule? One of our employees wants to have stomach stapling surgery done and has asked for FMLA beginning May 29, 2002. We want her to wait until mid-July. Can we do that? Thanks.

Hatchetman

Under FMLA, if at least a 30-day notice for FMLA leave is not forseeable because of a medical condition inlcuding planned medical treatment, then the employee needs to give as much notce of the need to the emplyer as practicable. So, if the 30 day notice has been given, you may be "out of luck" to push it back even further. If you want to have the emplyee wait until July rather than when it is currently planned, you should only require that if the treating practitioner is willing to hold off. In the meantime, don't make the medical decision that the emplyee can wait until when you want the emplyee to have the operation.

Margaret Morford

FMLA does make some provision for employers' rights in scheduling when its convenient for the business. You don't usually get to this because the event sets the time table. While you do have the right to say that July is more convenient and inquire if the employee will be medically harmed by waiting 45 days, I usually ask the employee if his/her surgery can be scheduled in July to accomodate the business without medically compromising him/her. I try not to put it in the form of "We can probably make you move it if doesn't medically compromise you". Practically, all he/she needs to do is go back and get the doctor to write a note that says he/she medically needs the surgery in May and your ability to schedule at the business' convenience evaporates. I'd rather work it out with them so as not to create hard feelings and be encouraging to the employee.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

njjel

This empee may be other medical problems which requires this surgery be done immediately. I would check this out before I refused the requested leave. And if she's given the 30 day notice I believe you need to abide by that.