Are Elective Surgeries Covered under the FMLA?

Q. An employee is having an elective surgery that won’t require an overnight hospital stay, but she will be off work for two weeks to recover and will possibly have some restrictions afterward. Will her surgery and time off be covered under the Family and Medical Leave Act (FMLA)?

A. Under the FMLA, an eligible employee can be granted leave for a qualifying circumstance including a serious health condition that makes the employee unable to perform the functions of the employee’s job. A serious health condition is defined under the Act as an illness, injury, impairment, or physical or mental condition involving inpatient care (including an overnight hospital stay) or continuing treatment by a health care provider. Inpatient care can also include any period of incapacity, which is further defined as an inability to work or perform other regular daily activities due to the serious health condition, treatment for the condition, or recovery from the treatment. Even though an overnight hospital stay is not required for the care here, given the amount of time needed to recover for the surgery, it may qualify under the standards above, if the recovery involves a period of incapacity or the continuing treatment by, or supervision of, a health care provider. Unfortunately, without further information from the employee here, you cannot be certain FMLA leave is required. I recommend that you request certification issued by a health care provider to confirm whether the recovery or potential health restrictions would qualify as an incapacity or continuing treatment by a health care provider under the Act. 

Jason R. Mau is a shareholder in the Boise office of Parsons Behle & Latimer. He can be reached at 208-562-4898 or