Is FMLA available for weight surgery? Kidney donations?

Q. We have a very overweight employee who wants to have a weight-reduction surgery. This will be expensive and she may be off work for up to six weeks. Do we have to grant her FMLA leave for that time? — L.V., South Carolina

A. A serious health condition entitling an employee to FMLA leave means “an illness, injury, impairment or physical or mental condition that involves inpatient care … or continuing treatment by a health care provider.”  (29 C.F.R. § 825.113(a)) It appears that weight surgery would be considered a serious health condition as it would require hospital care.

Note: If the surgery is purely cosmetic, such as liposuction to remove unwanted fat from an area of the body, you need only provide FMLA leave if there are complications that, in themselves, amount to a serious health condition.

What about kidney donations: Eligible for FMLA?

Q. We have an employee who will be donating a kidney. She will be off for several weeks and hospitalized for part of that time. It’s strictly voluntary, so is she eligible for FMLA leave? She doesn’t have a serious health condition—at least not before the surgery. — J.S., Nebraska

A. As of now, the FMLA does not specifically cover medical leave for an organ donor. Legislation proposed in Congress two years ago, the Living Organ Donor Job Secu­rity Act, would have amended the FMLA to entitle donors to leave. That bill never passed.

However, remember that, as with elective cosmetic surgery (see above), any hospital care or complication time associated with donating organs would appear to be covered.