Happy holidays Tis the season for Holiday cheer, good food, drinks, family and friends, and elective surgeries. Huh? Ok, there’s a bit of a difference between a completely elective surgery (think breast augmentation), and a partially elective surgery, like that carpal tunnel release or bunion removal that can be scheduled at your convenience.

It’s challenging enough to keep a full staff during the holidays as we all scramble to use our last PTO days in order to finish up our holiday shopping and have some quality time with our families. Adding FMLA time in to this one month period makes it nearly impossible to be confident you’ll have a full shop when you need it most.

What can you do about it?

For starters, those elective surgeries should be scheduled around a time that works for you and your business. Section 825.302 (e) advises that when planning medical treatment the employee must consult with the employer and make a reasonable effort to schedule the treatment so as not to unduly disrupt the employer’s operations. That may not be between November 25th and January 1st.

What happens when they simply show up and say that they forgot to mention they’re having their bunionectomy tomorrow? The Department of Labor advises that an employee must provide at least 30 days advanced notice when the need for leave is foreseeable (Section 825.302 a).

Also, remember that not all elective surgeries are FMLA qualified. They must be medically necessary and certified as such by a physician. Exercise your rights under the FMLA to obtain a provider certification that supports that the need for leave is due to, or has resulted from, a serious health condition under DOL guidelines. If the need for leave is not medically necessary and causes an undue hardship on the employer, the leave may be delayed or denied.

And last but certainly not least, what about the employee that requested PTO for Christmas day that you had to decline? He has an approved FMLA claim for his migraines. You’re pretty sure you overheard him telling a co-worker he’s foreseeing his migraine Christmas morning. Don’t forget your rights under the honest suspicion rule.

As hard as it is to remember sometimes, you as an employer also have rights under the FMLA. Learn what they are and how you can incorporate them safely in to your operation. As always, documentation is your friend. Over do it.

Happy Holidays!