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Are Employees Entitled to FMLA Leave for Cosmetic Surgery?

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The Family and Medical Leave Act of 1993 (“FMLA”) provides for up to 12 weeks of job protected, unpaid leave each year for certain employees for reasons that include the employee's own serious health condition. Are employees entitled to leave under the FMLA for cosmetic surgery? The answer depends upon whether the procedure is related to a medical condition that otherwise qualifies as a “serious health condition” under the FMLA. If so, then the answer is yes. For example, reconstructive surgery following a serious injury or illness would likely qualify for FMLA leave.

However, the applicable regulations provide that conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not “serious health conditions” for which FMLA leave is available unless inpatient hospital care is required or unless complications develop. Accordingly, FMLA leave is generally not available for purely outpatient cosmetic procedures. However, the regulations suggests that FMLA leave would be available for a purely cosmetic procedure if the procedure involves an overnight stay in the hospital or results in complications that otherwise meet the definition of “serious health condition.”