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FMLA denied for "elective" surgery

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  • FMLA denied for "elective" surgery

    Hello everyone, sorry for the long post, and thank you in advance for any and all advice/suggestions/input...

    A coworker of mine had surgery for cancer 2 years ago (summer 2014) while she worked here, and took FMLA when she had that surgery. In December of that same year (2014), she was let go after having worked here for 2 years because the research study she was working on ended early. In May of 2015, she was hired back by the same department to work in a different role.

    When she had the surgery in 2014, she required several drains afterward, and several of those sites have never healed properly. In November of 2015, she developed an infection in one of the sites and had outpatient surgery (on a Saturday to minimize lost work time) to take care of it. She was out for 3-4 days, I believe, at that point. Back in Dec/Jan the infection came back and the doctor told her it will be inpatient surgery this time and she will need to be out of work for several weeks.

    Our HR dept first told her that she was not eligible for FMLA due to the 12 month rule because it was Dec/Jan 2015/16 and she was just rehired in May of 2015. After being shown the decision in a federal court of appeals case that said those 12 months need not be "in a row" as long as the gap in employment was less than 7 years (I believe that's what the article said), they changed their mind. But now they are saying that she is not eligible for FMLA because the surgery is considered "elective." Because of the work we do, I am aware that many surgeries - unless you come in through the ER - are considered "elective." For example, if they do a biopsy and find cancer, and you decide to have surgery to remove it (provided it's not causing an immediate life-threatening situation), it's often stated in the chart to be "elective." It's not like she's trying to have plastic surgery or something (which may or may not be allowed under FMLA - I have no idea), so I am very confused as to how our HR dept arrived at this decision.

    If anyone can shed some light on this situation, I would greatly appreciate it. I just want my coworker to get the surgery she needs without fearing losing her job. It's a very dangerous situation with this infection and even the doctor does not understand how our HR dept is weighing in on this. To be honest, I don't trust that our HR dept is properly interpreting the FMLA rules, given their initial (mis)interpretation of the 12 month rule, but I obviously do not work in that field and defer to the experts!

    So I guess the questions are these: can FMLA be denied in this case due to an "elective" surgery? And, if not - if she is truly eligible - what should she do at this point to get FMLA in place?

    Thanks so much for any information/input/insight you can share!
    Last edited by uncertain; 05-17-2016, 05:06 AM.

  • #2
    Cosmetic surgery is only covered if complications develop or it requires hospitalization. Elective is not the same and it is unclear how the employer would even know if a surgery was elective or not. More likely is the fact that the employee may not have worked the 1250 hours in the past year required to qualify for FMLA. It may also depend what the doctor indicated on the certification form. Your coworker needs to ask whomever approves FMLA directly why it is denied and what to do.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    • #3
      Thanks for the information. The things they put in writing as the reason for denial include things like "no fevers," though she has had them and they are documented by her doctor, and "no cancer or systemic disease." The doctor went so far as to call her manager to explain the severity of the situation (her manager is her ally in all of this), but central HR has not been helpful at all. I just can't believe it's acceptable for an HR department to tell someone they don't qualify for FMLA when a doctor is saying it's medically necessary. Also, she has worked the 1250 hours - her anniversary date is in one week now. But they are now saying it's not FMLA eligible because it's elective and not emergency surgery. How or why they know that, I'm not sure. I know when I had surgery years ago at another job, they had a third party handle the medical paperwork, but that does not seem to be the case here.

      Anyways, I just thought I'd try to get some information for her, since our HR department has not been helpful. Thanks for your help.

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      • #4
        Does your company offer any leave outside of FMLA? My company isn't covered under FMLA but we offer up to 8 weeks unpaid for medical issues. Perhaps your coworker could look into that if FML isn't an option.

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        • #5
          Unfortunately, they do not offer something similar - but thanks for the suggestion!

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          • #6
            The doctor talking to the manager is useless if that is not who approves the leave. My guess is that the certification form from the doctor was deficient. It happens more than you think.
            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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