Have you ever wondered how the FMLA applies in situations in which an employee's (or an employee's family member's) illegal or suspicious activity resulted in a serious health condition? Generally, you would still apply the definition – how the employee or family member ended up with the condition is of little consequence. Whether injured during an elective surgery or traveling to obtain medical services that might be illegal where they live, it does not matter.
The Family and Medical Leave Act (FMLA) itself does not change too often. A change to the law requires Congressional action. The U.S. Department of Labor's Wage and Hour Division (WHD) also does not change the FMLA regulations too often, either, since it may not go beyond the boundaries of the FMLA law. The WHD can provide guidance, which it does every now and then. Courts, on the other hand, can, and often do, hand down decisions that can change the FMLA compliance landscape for employers.
The opinions that affect FMLA administration stem from federal courts: District, appeals, and the U.S. Supreme Court. The changes can result in employers rethinking some aspects of how they comply with the law, including the FMLA's definition of a serious health condition. That definition, however, continues to remain unchanged.
Therefore, the reason behind why the condition exists is inconsequential. A perfectly healthy employee could decide to donate a kidney. Just because the employee elected to donate doesn't matter. Once the donation procedure is underway, the individual has a serious health condition.
Pregnancy is also commonly elective, but it's still a serious health condition. An employee could suffer a miscarriage, or have other issues related to a pregnancy. An employee could also elect to be a surrogate, and basically carry and deliver someone else's child. Time off for the pregnancy, delivery, and recovery would all be FMLA leave. The employee would not, however, be entitled to FMLA leave for bonding, as that would not be occurring. She would be entitled to leave only as is medically necessary.
Until or unless the FMLA's definition of a serious health condition changes, it will continue to be the determining factor, regardless even of court rulings that do not directly address it. As usual, you would not take a negative employment action — including termination — against an employee for taking FMLA leave for a qualifying reason.
Key to remember: Don't worry about extraneous details revolving around how an employee got a medical condition; focus on the FMLA's definition of a serious health condition to help determine if an employee is entitled to the job-protected leave.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.