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Elective Surgery

SystemSystem 5,885 Posts
in HR & Employment Law Vote Up0Vote Down
Should we inform an employee that their elective surgery can not be taken at a time that is very busy for our company? Also, if the employee has FMLA paperwork completed, does that then make it more difficult for us to argue that it is elective surgery?
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  • 8 Comments sorted by Votes Date Added
  • joanniejoannie 2,294 Posts
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    If it is elective surgery, how does it qualify as a serious health condition?
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  • SystemSystem 5,885 Posts
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    It is the type of surgery that will assist in alleviating a problem. The employee doesn't have to have the surgery.
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  • ACU FrankACU Frank 2,188 Posts
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    If it "will assist in alleviating a problem" I would get out of the way and let her have it. Do you want to be in the position later of having to explain why this employee's problem got worse while she was waiting for the company to no longer be inconvenienced by her recovery?
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  • HR IN ALHR IN AL 37 Posts
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    I agree with Frank. Just because you consider it elective surgery doesn't mean the employee does. The courts would not side with you if there was FMLA paperwork filled out. Sorry but you should just take your lumps on this one.
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  • davidsdavids 427 Posts
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    I think you first need to define "elective." An employee with a serious health condition may have a choice of treatments (e.g., a long drawn out regimen of drugs, which may or may not work; or surgery). So, although the employee is "electing" surgery, he/she may have a serious health condition.

    Assuming the employee does not have a serious health condition, the elective surgery iteself is not an FMLA-qualifying condition. However, once the surgery occurs, the recovery period may qualify as a serious health condition if it meets the statutory definition.
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  • cnghrcnghr 719 Posts
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    There's also another distinction in the definition of "elective" surgery....the way hospitals define & describe it when you're going in for surgery, any surgery not performed on an emergency basis is elective. I found this out when I went in for surgery several years ago. I absolutely HAD to have the surgery, no way around it, but they kept using the term "elective surgery" in all the paperwork I had to fill out and sign. When I asked them about it, they explained that was the way hospitals define "elective surgery". I guess in that case the "election" I was making was between either having the surgery or dying of the condition that necessitated the surgery!
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  • CarolACarolA 16 Posts
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    Id have a hard time, if the FMLA cert is in order and the surgery is necessary for the employee'e health. Id allow the FMLA and make sure your have someone cross trained to handle the absence.
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  • dbutton111dbutton111 165 Posts
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    Do you mean elective or cosmetic?

    I can think of one that could be seen as both. I could see where this could be a breast reduction which could be "cosmetic" and where a breast reduction could alleviate back pain.

    Either way, even cosmetic surgery can be deemed a serious health condition if it requires a hospital stay.

    29 CFR 825.114 (c) 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.
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