Must an employer provide leave to an employee so the employee can undergo elective or cosmetic surgery? The Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) provide qualifying employees with up to 12 weeks of unpaid leave for an employee’s own “serious health condition” that prevents the employee from performing their essential job functions. Elective surgery does not qualify as a serious health condition that would require protected medical leave, absent some complication.

Under both laws an employer may require medical certification of the employee’s serious health condition. If an employee refuses or fails to provide the certification, the leave request may be delayed or, potentially, denied. Under California law, however, an employer cannot ask for additional medical necessity information beyond the certification. Thus, while an employer cannot ask for the information, an employee may voluntarily share it with other employees or his or her medical provider. Once the employer has actual knowledge that the leave is requested for an elective procedure, then the employer may reject the leave request since the FMLA and CFRA do not cover leave for purely elective procedures.

There is one area where FMLA and CFRA leave may be appropriate that involves elective surgery – where a serious health complication arises out of or is discovered during the elective surgery.

If you have any question about whether or not you, as an employer, should permit an employee to take unpaid medical leave contact your attorney. The stakes of being wrong are too high and the leave laws too complicated to make the decision to deny unpaid leave without competent legal advice.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.