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Yes, if the procedure is related to a medical condition that otherwise qualifies as a “serious health condition” under the California Family Rights Act/Family and Medical Leave Act (CFRA/FMLA). Protected leave cannot be denied simply on the basis that the employee is having an elective procedure.
Elective surgery generally refers to surgery that is not considered an emergency or medically necessary. It typically is scheduled in advance and performed based on a patient’s request and their doctor’s recommendation. Examples of elective surgeries include weight loss surgery, hip and knee replacements, and LASIK eye surgery.
For a medical procedure to be covered under the CFRA/FMLA, the key issue is whether the employee has a serious health condition, not whether the procedure is elective or not.
Neither the CFRA nor the FMLA reference “elective” procedures. The FMLA provides in its regulations that “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.” (Code of Federal Regulations, Title 29, Section 825.113(d)).
The regulation makes clear, however, that a hospitalization or complications would make the procedure covered.
For example, if you have an employee who needs time off for a hip replacement that requires an overnight stay in a health care facility or continued treatment, the absence will likely qualify for CFRA/FMLA protections.
Employers may require employees to provide them with at least 30 days’ advance notice of planned medical care unless such notice is impractical. The fact that advance notice can be required itself demonstrates that elective procedures are covered.
As situations surrounding CFRA/FMLA leave can be quite complicated, it is always recommended that employers consult with their employment law attorney to determine the most appropriate course of action.
Read more about CFRA and FMLA Qualifying Reasons in the HR Library.