If my employee chooses to get treatment outside the U.S., is it FMLA?

12/20/2023

A WHD representative said, “Yes.”

The federal Family and Medical Leave Act (FMLA) regulations specifically indicate that, in certain situations, employers must accept certification from a health care provider outside the U.S.

This means that employees who take time off for situations involving a serious health condition and treatment for that condition, would be protected by the FMLA.

But the FMLA regulations are somewhat specific on what those situations are:

In circumstances in which the employee or a family member is visiting in another country, or a family member resides in another country, and a serious health condition develops, the employer shall accept a medical certification as well as second and third opinions from a health care provider who practices in that country. Where a certification by a foreign health care provider is in a language other than English, the employee must provide the employer with a written translation of the certification upon request.
29 CFR 825.307(f)

This does not, however, address situations in which an employee (or a family member) chooses to obtain treatment for a condition from a health care provider outside the U.S.

What a government representative had to say

Curious about this, we recently contacted the U.S. Department of Labor’s Wage and Hour Division (WHD), which enforces the FMLA regulations. We wondered if the agency would look to the letter of the law or the spirit of the law.

When asked whether employees who elect to get treatment in foreign lands would be FMLA protected, the WHD representative took a spirit-of-the-law stance, and said that she believed they would. She added that she saw it as no different than if employees suffered a serious health condition while in a foreign land.

The representative went on to say that she had not heard that question before, and that she would dig deeper. We expressed that it would be nice if their agency would publish something regarding this view on their website.

What the future might hold

While we are not holding our breath on seeing anything in the near future, the insight from the WHD representative gave us a bit to go on. Not that it holds any real teeth; it’s just one interpretation.

Employers that want to deny the FMLA protections in such situations might find that the WHD really does look at this through the lens of the spirit of the law. Employers that would rather not take the risk would designate the leave as FMLA.

Key to Remember: According to a WHD representative, employees who choose to obtain treatment from health care providers outside the U.S. are protected by the FMLA.

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.

The J. J. Keller FMLA Manager service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA requirements.