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Could you please delay your surgery?

When FMLA leave poses work coverage issues

Posted July 12, 2018

The paint department was operating wide open on all three shifts, and everyone was all-hands-on deck. The department didn’t have that many employees at the time, and the work was needed to fulfill a large order from a new, highly potential customer, and deadlines were looming. Honorio, who managed the paint department, was waiting on line one of Christine’s phone. This made her a bit nervous, as she handled absent management for the company, and was aware of the deadlines in that department.

“Hello, Honorio,” chimed Christine.

“Christine, Steve wants to take off work for foot surgery, and the timing couldn’t be worse. May I ask that he delay the surgery?”

“Well, can you give me a bit more specifics, such as whether Steve is currently impaired because of whatever brought about the need for surgery? Otherwise, if you’d like to send him my way, I’ll be happy to talk to him,” responded Christine.

“I’d appreciate it if you took it from here, thanks.”

Christine was wise to impart the need for more information, and likely wise to take the inquiry out of Honorio’s hands. In situations such as these, much will depend upon the specific facts involved.

If, for example, the procedure is medically necessary and the employee is incapacitated or otherwise suffering without the procedure, or otherwise has a decrease in the quality of life because of the need for the surgery, asking that it be delayed could have risks. Often, this is a question between the employee and his or her health care provider.

If, on the other hand, the employee is not currently incapacitated because of the condition, he or she could be amenable to a voluntary delay. If so, then there should be no problem. The focal point is that the employee voluntarily agrees to the delay, and is not compelled or otherwise induced to delay such a procedure.

Eligible employees are entitled to take FMLA leave for qualifying reasons. Unfortunately, the FMLA does not have a hardship defense, so the fact that a department (or entire company) will have challenges if an employee takes FMLA leave does not generally matter. The FMLA does not address how employers get the work done when an employee (or employees) are on leave.

This can be particularly frustrating when the need for leave is unforeseeable and no one is available to step in. While cross-training can certainly help, using temporary employees could also lessen the crunch. In a tight job market, the challenge is heightened.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.

Essentials of FMLAJ. J. Keller's Essentials of FMLA manual helps HR pros understand and comply with the FMLA rules, control costs related to leave taken, and minimize the law's potential disruption to their organizations' operations.


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