I was denied FMLA because my cosmetic surgery is not considered medically necessary. My husband needs assistance after having shoulder surgery. I plan on taking FMLA to care for him. So, am I allowed to have my surgery performed while I am off on FMLA caring for him?
Ann Kiernan and Rita Riser Chai respond:
We are not surprised that your personal FMLA request was denied, since cosmetic surgery is never FMLA-eligible unless there is an overnight hospital stay, complications develop, or the surgery is restorative, after an accident or removal of cancer. 29 CFR §825.113(d).
As for Husband, you are eligible for FMLA to care for him only if he has been medically certified with a serious health condition. Most FMLA serious health conditions require incapacity, defined as “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.” 29 CFR §825.113(b). So, if Husband can’t take care of himself because of his surgery, how can you leave him to go have surgery yourself? And if he can take care of himself, then you’re not needed to care for him. In addition, you’re eligible for FMLA only as long as he is incapacitated. If he needs help for three days, and they gave you two weeks of FMLA, you should go back to work, not go under the knife.
We think that it is very risky for you to do this, especially if your cosmetic surgery results will be obvious. FMLA fraud can lead to termination. After Husband recovers, you can take some vacation or personal days to get your cosmetic surgery performed.
Posted 01-25-2021
Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.
