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Family Medical Leave Act (FMLA) and Hysterectomy

From the Pre-Op Hysterectomy Articles List

Woman researching information aout FMLA for hysterectomyCan someone help me understand if I might be eligible to use the Family Medical Leave Act? I'm worried about my financial responsibilities while I'm recovering from my hysterectomy!

Generally speaking, if your employer has 50 or more full-time employees, or if it fits the definition of a “public agency” (generally a governmental agency), you are covered by the Family Medical Leave Act of 1993. The Act entitles you to a total of 12 workweeks of leave during any 12-month period for one or more of the following reasons:
  • Because of the birth of a son or daughter of the employee and in order to care for such son or daughter
  • Because of the placement of a son or daughter with the employee for adoption or foster care
  • In order to care for the spouse, or a son, daughter, or parent of the employee, if such spouse, son, daughter, or parent has a serious health condition
  • Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee

Note: The remainder of this article will address only the fourth reason above—a serious health condition of the employee—since that is what applies in the case of a hysterectomy or other necessary health treatments for related disorders.

This leave may be paid or unpaid. You or your employer has the option to substitute paid leave (accrued vacation or sick time, for instance) for any or all of your leave. In other words, you do not necessarily have the option of choosing unpaid leave if you have accrued vacation or sick time remaining.

Duties of employee

In any case in which the necessity for leave is foreseeable (in other words, non-emergency in nature), the employee—
  • Shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, or parent of the employee as appropriate.
  • Shall provide the employer with not less than 30 days’ notice, before the date the leave is to begin, of the employee’s intention to take leave, except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.

This means that if your leave is not an emergency, you are expected to work with your employer on timing. It is reasonable, for example, that an accounting firm might want a tax accountant to reschedule a surgery planned for early April if it’s not an emergency.

Certification of Leave

An employer may require that a request for leave be supported by a certification issued by the health care provider of the eligible employee or of the son, daughter, spouse, or parent of the employee as appropriate. The employee shall provide, in a timely manner, a copy of such certification to the employer.

Sufficient certification

Certification provided shall be sufficient if it states:
  • The date on which the serious health condition commenced
  • The probable duration of the condition
  • The appropriate medical facts within the knowledge of the health care provider regarding the condition

There are other stipulations for intermittent leave for medical treatments.

Second opinion

In any case in which the employer has reason to doubt the validity of the certification provided, the employer may require, at the expense of the employer, that the eligible employee obtain the opinion of a second health care provider designated or approved by the employer concerning any information certified.

Subsequent recertification

The employer may require that the eligible employee obtain subsequent recertifications on a reasonable basis.

Restoration to position

In general, any eligible employee who takes leave for the intended purpose of the leave shall be entitled, on return from such leave:
  • To be restored by the employer to the position of employment held by the employee when the leave commenced; or
  • To be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

Loss of benefits

The taking of leave shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced.


You are not necessarily entitled to:
  • The accrual of any seniority or employment benefits during any period of leave
  • Any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.

As a condition of restoration of employment, the employer may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work.

Periodic Reports

Nothing in this subsection shall be construed to prohibit an employer from requiring an employee on leave to report periodically to the employer on the status and intention of the employee to return to work.

If your employer is covered under FMLA, it is in your best interest to enlist the assistance of your human resources department as soon as possible to work with them. Your employer may have specific forms they want you to fill out.

This is not intended to be a complete explanation of FMLA, but it is intended to give you an idea of your responsibilities as an employee under the Act.

This content was written by staff of HysterSisters.com by non-medical professionals based on discussions, resources and input from other patients for the purpose of patient-to-patient support.

12-03-2005 - 01:22 PM


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