What should we do? It looks like employee used FMLA leave for elective surgery

Q. An employee told her supervisor that she needed surgery. We approved time off under the FMLA with the understanding that she would provide certification after the leave began. We later discovered that this “necessary” procedure was liposuction. Can we revoke approval of medical leave under the FMLA and convert sick hours she used to vacation hours instead? Can we fire her based on inappropriate use of the FMLA?

A. Generally, cosmetic surgery will not qualify under the FMLA as a “serious health condition” unless inpatient hospital care is required or unless complications develop.

An employer is required to advise an employee whenever it finds an FMLA certification incomplete or insufficient, and must state in writing what additional information is necessary to make the certification complete and sufficient.

The employer must provide the employee with seven calendar days (unless that’s not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to cure any such deficiency. If the deficiencies specified by the employer are not cured in the resubmitted certification, the employer may deny the taking of FMLA leave.

Here, it appears that the employee will be unable to provide sufficient certification, within the requisite time period, and her FMLA approval may denied and converted to sick/vacation time.

Before terminating her for violating your FMLA policy, you should investigate whether the employee deliberately withheld the nature of her surgery, knowing that it would not be covered by the FMLA. Be wary that this employee may bring an FMLA retaliation claim if she is terminated.