Time Off for Elective Surgeries | Business Requirements

Employees increasingly schedule non‑emergency procedures that improve quality of life yet still require time away from work. While corporate policies often distinguish casually between “elective” and “necessary” interventions, the legal framework governing leave entitlements ignores those labels and focuses instead on carefully defined statutory triggers. Understanding that difference—and applying it with discipline—is essential for business leaders and counsel who must balance operational demands with strict compliance duties. This article explains the governing federal and state laws, clarifies how they apply to common procedures, and outlines practical steps to reduce litigation exposure.

Planning leave for surgery involves overlapping mandates. At the federal level the Family and Medical Leave Act grants up to twelve weeks of unpaid, job‑protected absence when the employee’s situation meets the statute’s definition of a serious health condition. The Americans with Disabilities Act may require additional leave as a reasonable accommodation when the worker’s underlying impairment, or even the temporary limitations created by recovery, substantially limits a major life activity. Several states add their own rules—many of which compel paid leave, cover smaller employers, or expand antidiscrimination protections. Employers that react instinctively to the word “elective” instead of analyzing the precise legal criteria risk interference, retaliation, or disability claims.

Please note this blog post should be used for learning and illustrative purposes. It is not a substitute for consultation with an attorney with expertise in this area. If you have questions about a specific legal issue, we always recommend that you consult an attorney to discuss the particulars of your case.

Discretionary vs. Necessary Surgery

Health‑insurance literature often treats discretionary or elective surgery as any operation scheduled in advance and not prompted by an acute emergency. Typical examples include cosmetic enhancements, joint replacements arranged months in advance, weight‑loss procedures, vision correction, or even living‑organ donation. Conversely a medically necessary procedure normally addresses a condition that threatens life or ongoing bodily function. Employment statutes, however, pivot on different concepts. The FMLA asks whether the employee has a serious health condition; the ADA asks whether the employee has a disability and whether the requested time off is a reasonable accommodation. A surgery’s “elective” label is therefore irrelevant unless it prevents the worker from satisfying one of those statutory definitions.

Family and Medical Leave Act (FMLA)

The FMLA applies to private employers that maintain fifty or more employees within seventy‑five miles, to public agencies, and to elementary or secondary schools. An individual qualifies after twelve months of service, at least one thousand two hundred fifty hours worked in the preceding year, and employment at a covered location. Once those thresholds are met, the law guarantees up to twelve work‑weeks of unpaid, job‑protected leave during any twelve‑month period for enumerated reasons that include the employee’s own serious health condition.

A serious health condition exists when the employee requires inpatient care—defined as an overnight stay in a hospital or similar facility—or when the employee endures more than three consecutive full calendar days of incapacity that also involves continuing treatment by a health‑care provider. Continuing treatment encompasses at least two in‑person visits within thirty days, or a single visit that results in a regimen such as prescription medication, physical therapy, or post‑operative follow‑ups. Pregnancy, chronic illnesses that flare episodically, and long‑term incapacities also meet the definition. The Department of Labor has emphasized that almost every surgical procedure is technically “voluntary,” so voluntariness alone does not exclude coverage.

If an elective procedure requires an overnight hospital stay, the leave is automatically FMLA‑protected provided that the employer and employee otherwise meet the statute’s eligibility conditions. When no hospitalization occurs, protection depends on whether the ensuing incapacity exceeds three full days and involves continuing treatment. Cosmetic surgery is expressly excluded when performed solely for appearance, but that exclusion disappears if complications develop or if the procedure is restorative—for example after an accident or to remove cancerous tissue. Employers may require medical certification on the government’s standard forms; failure to provide complete certification can justify delaying or denying protection, but it does not permit intrusive inquiries about diagnosis.

Notice Duties

Employees must give thirty days’ notice when they can foresee the need for surgery. If thirty days is impracticable, they must provide notice as soon as possible under the circumstances. Conversely, once management has enough information to believe the FMLA may apply, it must issue an eligibility notice within five business days and follow the statute’s strict sequencing of rights and responsibilities communications.

Americans with Disabilities Act

The ADA prohibits discrimination on the basis of disability by employers with at least fifteen workers and requires reasonable accommodations that do not impose undue hardship. A person has a disability when a physical or mental impairment substantially limits one or more major life activities, when a record of such an impairment exists, or when the employer regards the individual as disabled. The 2008 amendments instruct courts to interpret “substantially limits” broadly and to disregard mitigating measures such as medication.

An operation itself is not an impairment; rather, the focus rests on the condition that prompts the surgery or on the post‑operative restrictions. A knee replacement due to severe osteoarthritis plainly follows from a covered impairment. Even temporary limitations can qualify: federal appellate courts and EEOC guidance explain that a short but significant inability to walk, lift, or perform manual tasks during recovery may substantially limit a major life activity. Accordingly, an employer cannot reject a leave request solely because the need will last only a few months.

Leave as a Reasonable Accommodation

Leave is an accommodation of last resort but one squarely recognized by the EEOC. When a finite period of absence enables the worker to return to essential duties, providing that time is usually reasonable unless it causes significant difficulty or expense. The analysis is highly fact specific. Employers may consider the size of the workforce, whether temporary workers can cover the role, the predictability of the employee’s return, and cumulative time already missed. An open‑ended or vaguely estimated return date may cross the line into undue hardship, yet courts seldom accept a bright‑line rule. Managers must engage in a documented interactive process, exploring alternatives such as part‑time schedules or modified duties before rejecting a request outright.

State Leave Laws

Many state legislatures have filled perceived gaps in the federal schemes. Michigan, California, and New York illustrate three different models that overlay federal duties with additional obligations.

Through February 2025 Michigan’s Paid Medical Leave Act requires private employers with fifty or more employees to grant up to forty hours of paid medical leave each benefit year for personal or family medical needs, including surgical recovery. Accrual occurs at one hour per thirty‑five worked. On twenty‑one February 2025 the state reverts to its voter‑approved Earned Sick Time Act, expanding coverage to all employers, boosting accrual to one hour per thirty hours, and increasing annual use to seventy‑two paid hours at larger companies. Michigan also prohibits disability discrimination through its Persons with Disabilities Civil Rights Act and recognizes gender identity as a protected class under the Elliott‑Larsen Civil Rights Act, heightening risk when surgery is tied to gender dysphoria.

California’s Family Rights Act mirrors the FMLA’s substantive protections but covers employers with as few as five employees and defines family members more broadly, extending leave to care for domestic partners, grandparents, grandchildren, siblings, and a designated person of the employee’s choosing. Paid sick leave legislation obliges almost every employer to provide at least forty hours of paid time annually for the employee’s or a family member’s health‑related needs. The state’s antidiscrimination statute, the Fair Employment and Housing Act, both mirrors and expands the ADA, explicitly covering gender identity and expressly requiring health plans to cover medically necessary gender‑affirming treatment. Employers therefore confront both leave and benefits obligations when a California worker schedules such procedures.

New York addresses leave through two distinct statutes. Paid Sick Leave mandates that private employers provide between forty and fifty‑six hours of job‑protected sick time each year, paid at the employee’s regular wage at organizations above a modest revenue threshold. Paid Family Leave, funded by employee payroll deductions, furnishes up to twelve weeks of partial‑wage replacement to care for relatives with a serious health condition, but it does not cover the employee’s own condition. For the employee’s surgery recovery New York instead relies on the Disability Benefits Law, which supplies up to twenty‑six weeks of modest wage replacement but expressly excludes absences caused by elective cosmetic procedures. New York’s Human Rights Law, as amended by GENDA, recognizes gender dysphoria as a disability and prohibits discrimination based on gender identity, making refusal to accommodate leave for gender‑affirming surgery particularly risky.

Specific Procedures

Cosmetic procedures undertaken solely for aesthetic improvement rarely activate federal leave rights because they fail the serious health condition and disability tests. The calculus changes the moment an infection necessitates hospitalization or when the surgery is reconstructive after trauma; in those circumstances the statutory definitions are often met. State paid sick leave, however, generally permits workers to draw accrued hours for any health‑related recovery, meaning employers in those jurisdictions must approve paid time even when the federal statutes do not attach.

Employers must analyze each request individually. If a purely aesthetic procedure requires inpatient care the FMLA applies. If complications arise and the employee meets the continuing‑treatment rule, coverage also triggers. The ADA rarely compels leave for cosmetic work because no underlying impairment exists. State paid sick leave usually covers the recovery period, and missteps in administration can still produce liability.

Gender‑affirming surgery presents a different picture. Medical consensus treats such surgery as clinically indicated treatment for gender dysphoria. If the operation involves inpatient care or if the recovery entails more than three days of incapacity with follow‑up treatment, FMLA coverage is readily established. Increasingly, courts hold that gender dysphoria itself can be a disability under the ADA, removing any doubt that leave may be a reasonable accommodation unless it imposes undue hardship. States like California and New York reinforce those conclusions through explicit statutory language and insurance mandates. Denying leave or related accommodations not only risks FMLA or ADA claims but invites sex discrimination allegations under Title VII following the Supreme Court’s decision in Bostock, which equated discrimination against transgender individuals with discrimination because of sex.

Employer Compliance and Risk Management

Compliance begins with mindset. Managers should flag every surgery‑related absence for possible FMLA analysis, issue timely notices, and request medical certification within statutory limits. Once FMLA eligibility is confirmed they must track the entitlement meticulously, maintain group health coverage, and restore the employee to the same or an equivalent position at the end of leave. If FMLA does not apply—or once it is exhausted—the focus shifts to the ADA. Human‑resources professionals should initiate the interactive process promptly, documenting all discussions and the rationale for any decision. When state sick‑leave statutes apply, the employer must allow use of accrued paid time and record it separately from FMLA or ADA leave to avoid interference.

Policy drafting deserves equal attention. Written leave procedures should mirror statutory definitions, avoiding categorical exclusions for elective or cosmetic surgery that conflict with the law. Policies that require employees to be one‑hundred‑percent healed before returning or that terminate employment after a fixed period of absence often violate the ADA. Training is indispensable; supervisors who express frustration about FMLA absences or who disclose an employee’s medical details frequently generate the very lawsuits the policies aim to prevent.

Conclusion

Whether time off for planned surgery is legally required depends not on the operation’s elective character but on the statutory triggers embedded in the FMLA, the ADA, and state counterparts. The controlling issues are whether the employee’s condition and recovery qualify as a serious health condition, whether the underlying impairment or post‑operative limitations constitute a disability for which leave is a reasonable accommodation, and whether state paid‑leave schemes impose additional, and often stricter, mandates.

Employers that respond reflexively to the label “elective” risk misclassifying protected absences and drawing claims for interference, retaliation, or discrimination. A defensible approach is methodical: issue FMLA notices within five business days of learning that leave may be covered; request medical certification only to the extent permitted; engage in a documented interactive process under the ADA as soon as any disability or accommodation issue surfaces; and layer in state‑law entitlements, ensuring that the most protective rule guides each decision. Consistent application of those steps, coupled with confidentiality safeguards and manager training, minimizes litigation exposure.

Ultimately the legal analysis is fact specific and must be repeated for every request, regardless of how routine the surgery may appear. By anchoring decisions in the governing statutes rather than informal notions of necessity, employers can preserve operational continuity, respect employee rights, and demonstrate the good‑faith compliance that courts and agencies expect.

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Is a Business Required to Give Employees Time Off for Elective Surgeries?

Discretionary vs. Necessary Surgery

Family and Medical Leave Act (FMLA)

Notice Duties

Americans with Disabilities Act

Leave as a Reasonable Accommodation

State Leave Laws

Specific Procedures

Employer Compliance and Risk Management

Conclusion

Contact Tishkoff

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