Time Off for Gender Reassignment Surgery May Be Protected Leave

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By Jay-Anne B. Casuga

Oct. 20 — Can transgender employees take unpaid, job-protected leave for gender reassignment surgery? That’s one open question under a federal leave law that has seen a rise in private litigation over the past several years.

“The issue is theoretical,” Jeff Nowak, an attorney with Franczek Radelet in Chicago and co-chairman of the firm’s labor and employment practice, told Bloomberg BNA Oct. 19. But it increasingly will be something employers and employees will confront, he said.

Transgender rights under federal law has been a hot topic of late, especially in the context of workplace discrimination and public restrooms. With respect to the Family and Medical Leave Act, no lawsuits have been filed yet by transgender workers alleging that employers denied them leave to undergo and recover from gender reassignment surgery.

The Department of Labor, which enforces the FMLA, hasn’t discussed the issue, which hinges on whether the procedure would qualify as a “serious health condition” covered by the FMLA.

Surgery Can Address Depression

If a medical provider concludes that gender reassignment surgery is required to alleviate a worker’s depression, then the employee would be able to take FMLA leave to address that serious health condition, according to Darrell VanDeusen, an attorney with Kollman & Saucier in Timonium, Md., who has written a treatise on the FMLA.

Employees covered by the FMLA can take up to 12 weeks of unpaid leave to recover from a serious health condition.

The law defines a serious health condition as an “illness, injury, impairment or physical or mental condition” that involves “inpatient care in a hospital, hospice, or residential medical care facility” or “continuing treatment by a healthcare provider.”

DOL officials, who spoke to Bloomberg BNA Oct. 14 on condition of anonymity, observed that the FMLA’s test for establishing a serious medical condition is an objective one that turns on the advice of a medical professional.

Most individuals who are transgender do not claim they have a serious health condition because they are transgender, VanDeusen told Bloomberg BNA Oct. 12.

So the real issue behind the FMLA question, he said, is if gender identity issues are not themselves considered serious health conditions by health-care providers, then how can leave to address transgender issues qualify under the FMLA?

One way is if the transgender worker suffers from depression due to the gender identity issues, VanDeusen said.

Depression has been recognized by courts as a serious health condition under the FMLA.

Medically Necessary or Merely Cosmetic?

As a counterargument, an employer could contend that gender reassignment surgery isn’t required to eliminate depression and thus is similar to an elective or cosmetic procedure generally not covered by the FMLA.

Breast enhancement surgery, for example, likely would not be covered by the FMLA, while breast reduction surgery likely would be, VanDeusen said. The difference turns on which procedure is medically necessary to address a serious health condition.

“The simple answer is if a doctor says, ‘You need to have this for your physical or psychological well-being,’ then it’s going to be a serious health condition,” VanDeusen said.

Rules implementing the FMLA also allow employees to establish “continuing treatment” for a serious health condition by showing three consecutive days of incapacity. That period also must involve “treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.”

Applying this rule, some cosmetic procedures may be covered if they require overnight hospital stays or if complications develop that need continuing treatment.

If gender reassignment surgery would result in an absence of more than three consecutive days involving continuing treatment, an argument could be made that the procedure and recovery period are covered by the FMLA, Nowak said.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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