October 30, 2015
Wanda the Witch works as an administrative assistant for Stir the Pot, Inc., a cauldron manufacturer. Wanda is tired of seeing all her warts in the mirror and getting shunned at work. She schedules facial surgery to remove the warts. Her doctor tells her the surgery will be performed in the doctor’s office, and to plan on five days off from work to recover and start healing. (Those warts are, after all, rather extensive.) She will also need to have a follow-up appointment one week after the procedure, and her doctor will prescribe a pain killer and an antibiotic. Will Wanda’s time off be covered by the FMLA?
Let’s analyze. Wanda will be incapacitated for more than 3 consecutive days. She will see the doctor for her surgery and again seven days later. Her initial appointment for the surgery and either the follow-up appointment and/or the prescription medication satisfy the “incapacity plus continuing treatment” definition of a serious health condition. 29 C.F.R. § 825.115 (a)(1) and (2).
But wait — there’s an FMLA regulation that generally excludes cosmetic surgery:
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. 29 C.F.R. § 825.113(d).
So, as it stands, Wanda’s time off for cosmetic surgery to improve her personal appearance is not covered by FMLA.
Might Wanda’s wart-ectomy be covered by the FMLA under other circumstances? Let’s play with the facts and see what happens:
- Immediately following Wanda’s wart removal surgery she develops serious complications due to an allergic
reaction to the antibiotic. Her leave, or at least any part after the complication develops, is now likely
to be FMLA-protected. 29 C.F.R. § 825.113(d). - It turns out that Wanda’s warts are cancerous and she must have them removed to prevent
metastasis. “[R]emoval of cancerous growths [is a] serious health condition provided all the other conditions of this
regulation are met.” 29 C.F.R. § 825.113(d). - And one more (no warts this time!): Suppose Wanda fell of her broom while buzzing the moon on Halloween
night and landed flat on her face. If she needs cosmetic facial surgery to repair the damage,
the leave would be covered by FMLA. “Restorative dental or plastic surgery after an injury . . . are serious
health conditions provided all the other conditions of this regulation are met.” 29 C.F.R. § 825.113(d).
This situation might also implicate the ADA 29 C.F.R. § 1630.2 (i)(3)(iii) (“ . . . cancer substantially limits
normal cell growth”).