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December 9, 2020

Perfect attendance with endless time off

When Susan Ivey, MD, the president of the American Medical Women’s Association (AMWA), was a resident in 1984, there was no law protecting women who were working and pregnant. "There wasn’t that large a group of women training, maybe we were 20 percent of my class. It was not quite the norm to have a pregnancy during residency, and there were no policies in place. One woman did all her ICU and CCU rotations in the early part of her pregnancy so she could save up her elective time and do some easy rotations in the latter part. It wasn’t even thought you’d have time off," she says.

Today, time off for pregnancy and birth is taken for granted by most female workers, especially those who work for larger companies, such as hospitals. Workplaces that employ 50-plus employees must provide such time off, under a law passed by congress in the early 1990s: the Family and Medical Leave Act (FMLA). The law is designed to give workers time off when some sort of family or medical emergency strikes, without fear that taking the time will cost them their jobs.

The premise is a good one, and it can (and does) work. But according to politicians, human resource managers, lawyers, and even physicians, implementing this law brings more than its share of headaches.

The basics of the Family and Medical Leave Act

According to the U.S. Department of Labor (which administers FMLA and Finding FMLA Helppublishes the Family and Medical Leave Act Advisor), FMLA provides eligible employees (usually full-time personnel) with up to 12 weeks unpaid time off during any 12-month period.

There are four scenarios that allow an employee to be eligible for FMLA-assigned leave:

  • Pregnancy/birth of a child
  • The adoption or foster care placement of a child with the employee
  • To care for a spouse, parent, or child with a "serious health condition," or
  • The employee is the one with a serious health condition and "unable to perform his/her job."

"What you saw early on was that a company would give an employee four weeks vacation and two weeks sick leave and then FMLA, but that’s not correct. FMLA isn’t meant to be an additional kind of leave, but you would think the way it’s written, it would give you more time off than what you’ve got," says John Doran, a lawyer in the Phoenix, Arizona, office of Greenberg and Traurig. He represents employers in labor/employer relations and has written extensively on FMLA. Instead, FMLA time must be taken concurrently with other leave. It is possible to be paid if you have paid sick leave to use; otherwise FMLA time is unpaid.

"Maternity is generally the easiest type of FMLA to cover. You roughly know when it will start and when the employee will come back, and it’s fine as long as they come back in 12 weeks. The father can take paternity leave too, but fathers are not taking advantage as much as you might expect. We don’t see paternity leave requested much except in complicated pregnancies or births," says Doran.

Difficulties with FMLA interpretation

While pregnancy may be a fairly straightforward application of FMLA, interpretation of the other areas of coverage gets tricky. Jeffery Payne, a human resources director for Palmetto Health in Columbia, South Carolina, believes in FMLA’s importance. "The law itself is a good one and passed for solid reasons. If someone has a serious illness that takes them away from work, protecting their ability to come back to work is important," says Payne. He is also the chair of the labor and legislative committee of the American Society for Healthcare Human Resources Administration (ASHHRA), an organization for HR managers who work solely in health care.

Doran agrees the intent of FMLA is beneficial. "Today, thanks to FMLA, someone with a serious health condition gets unpaid leave with a guarantee of re-employment. In the old days, you would just be fired," he says.

Despite its good intentions, however, there are several points that give employers major hassles in adhering to FMLA. One is in the Department of Labor’s (DOL) own explanation of how an employer is allowed to calculate the 12-month period during which an employee’s 12-week FMLA leave can fall. According to the DOL, those 12 weeks can occur within any one of these four timelines:

  • The regular calendar year, from January to December;
  • Any fixed 12-month period the employer has designated, including its own fiscal year or perhaps an individual employee’s anniversary year (for example, Sept. 12, 2004 to Sept. 12, 2005);
  • The 12 months from the time the employee’s first FMLA leave starts, or
  • A "rolling" 12-month period measuring backward from the time the employee first took FMLA.

It should be made clear that because of the way FMLA is written, there’s nothing that says the employee needs to take the time off all at once. A worker can ask for, and should receive, time off in blocks here and there, a concept called "intermittent leave."

Major FMLA loopholes

According to Payne, "Where the law has gone beyond its intent is both in the intermittent leave clause and defining a serious problem." Take that intermittent leave concept. "The way the law is now written, you could take intermittent leave in one-hour increments. If you or your loved one has diabetes or asthma, you could be off one day a week forever. By the time you used up 12 weeks, you’d be into next year," Payne says. The definition is so lax, it’s possible for an employee who’s been out extensively to garner a perfect attendance award. "You can’t count their FMLA time off against them," says Payne.

The "serious health condition" definition is, as Payne pointed out, another area of confusion. Should the person with diabetes going to the doctor for a one- or two-hour appointment be allowed to have time off under FMLA without accessing sick or vacation time, while the person with high blood pressure or arthritis going in for her appointment is required to use paid time off? What determines a "serious health condition?" This confusion is a key reason many individuals who work with the law are calling for a more clearly defined statute.

Because of HIPAA laws, it’s possible for a company’s benefits manager, but not a person’s supervisor, to know for what condition the employee claims FMLA. "So people are free to call in and say, ’I’m taking a FMLA day," says Payne - and the supervisor cannot dispute it.

Such intermittent leave-taking can wreak havoc for staffing. Bart Metzler is the corporate vice president of human resources at Continuum Health Partners, which administers several major hospitals in New York City, including Beth Israel Medical Center and Long Island College Hospital. He says, "If I know you’re going to be out for six months, I can make plans. I can’t make provisions if you’re gone one day here, two days there."

Those unscheduled FMLA absences can be much harder in health care than in many other professions, Payne says. "When a surgical tech nurse from team one calls in sick, the nurse manager has to pull from surgical team number two to make up for the absence, and a domino effect occurs," he says. That’s difficult enough under regular circumstances; every health facility is going to experience a nurse out here, a doctor sick there. However, what happens if the surgical nurse is one with a chronic medical condition and is out regularly? The disruptions to a medical team could, in some cases, put people’s lives at stake. If a team member is absent regularly, the normal routine is never routine. Unfortunately, when combined with the Americans with Disabilities Act, FMLA makes it very confusing as to whether or not you can fire this nurse.

Payne also points out that health professionals, being better educated about the true demands of various health issues than the average person, may not be as sympathetic to a colleague or employee seeking medical absences. "I have a nurse who has Crohn’s disease and she manages to be here," says Payne. "She gets angry when the guy with irritable bowel syndrome calls in and says he has to take time off." Likewise, a physician could get annoyed with a staffer who decides they have to go home because his diabetes is flaring. What if that person contributes to his instability with poor diet choices?

FMLA in medical practices

Ivey says that although women’s voices in medicine have grown louder than when she began her career with 40 percent of the residents today being female, women doctors still face special challenges in using FMLA. "Professional women have an expectation that it’s not good to ask for too much because you’ll be seen as different from your male colleagues," she says.

Eliza Chin, MD, an internist in Oakland, Calif., and the editor of This Side of Doctoring: Reflections of Women in Medicine (Sage Publications, 2001), says that for physicians to take time off, even with FMLA protection, is difficult. "To me, as a physician, it’s not so much whether you’re paid or not; it’s how long can you afford to be away from your practice? The law allows a lot more than you feel you can stay away for."
Eliza Chin, MD, an internist in Oakland, Calif., and the editor of This Side of Doctoring: Reflections of Women in Medicine (Sage Publications, 2001), says that for physicians to take time off, even with FMLA protection, is difficult. “To me, as a physician, it’s not so much whether you’re paid or not; it’s how long can you afford to be away from your practice? The law allows a lot more than you feel you can stay away for.”

Eliza Chin, MD, an internist in Oakland, California, and the editor of This Side of Doctoring: Reflections of Women in Medicine (Sage Publications, 2001), came to her profession after FMLA passed and had no problem getting time off during pregnancy. "I had six weeks off with pay," she says.

Instead, Chin feels there are special challenges in taking time off that face physicians of either gender, even with FMLA protection. "To me, as a physician, it’s not so much whether you’re paid or not, it’s how long can you afford to be away from your practice? The law allows a lot more than you feel you can stay away for. I remember feeling slightly envious of friends who were engineers and who took three months maternity leave. It’s doable as a physician, but it’s not easy. I took six weeks, but not all in one shot. I took four weeks off first, and then some time here and there for the rest, so I could get back to seeing patients," she says.

Chin says taking a large amount of time off isn’t viable for most physicians. "It’s one thing to arrange patient coverage for vacations, but for months…that’s a long time," she says.

Non-medical personnel taking FMLA time also have an impact on a practice or hospital. Employees in medical practices may be better educated and more likely to take advantage of services such as FMLA, according to Rita Wallace, the vice president of client services and operations for HR XCEL, a Charlotte, North Carolina-based company that handles these kind of HR questions for practices that decide to outsource FMLA work. The difficulty with any staff member’s absence, says Doran, is that "medical practices build continuity of care, not just between the patient and the doctor, but between the patient and that practice’s staff as well. You don’t always want to be bringing in a temp."

Wallace also suggests it’s easier for in-facility health personnel to access appointments related to their FMLA health condition with little notice to employers. "The nurse in the hospital sees there’s an opening at two pm in MRI and she can scoot over there." Such impetuosity can wreak havoc with a facility’s schedule.

Doctors using FMLA

Everyone agrees that it can be much more difficult to hold a doctor’s job open than that of any other health team member. Metzger says, "If I’m a busy internist and I account for 200 patients who come into Beth Israel for dialysis, those patients won’t be coming in." His associate, Pam Abner, an assistant vice president of corporate resources at Continuum, says, "If the doctor’s absence cripples the department, you have to make a decision: Do you hold the position open and let the business go elsewhere, or fill it?" By FMLA law, the position must be held open for the 12 weeks, although it can be staffed in the interim by a physician in a temporary capacity.

What happens when the scenario isn’t cut and dried? Suppose the doctor is a surgeon and although he can’t operate anymore, he can do rounds. "Every single case is unique and has to be evaluated separately. It isn’t easy," says Abner.

Ivey says the doctor’s loss is felt even more acutely when the physician is in private practice. "A smaller practice can’t be sustained without the doctor, he’s the high-income earner," she says. Even when a practice has several other physicians on-site, Wallace says that not all the missing physician’s patients can be cajoled into being cared for by a partner. Also, one doctor’s fees missing from a five-person practice are felt more keenly than those of a doctor who accounts for five percent of a large partnership.

Those who abuse FMLA

As with any law, FMLA can be and is abused - even in the health-care field. "You’ll always have people who take advantage. If there are problems with FMLA abuses, you’re usually having other problems with that person," says Wallace.

Metzger points to a nurse who was taking intermittent FMLA while being disciplined for some infraction. "The supervisor became suspicious of the FMLA pattern and, sure enough, we confirmed that she was actually working in an emergency department elsewhere," he says. One of the ways around this is recertification, something that confirms the person requesting FMLA is still ill. Abner says, "We reserve the right to medically substantiate the alleged health problem." Another technique, says Wallace: "Look for patterns - if they take every Friday or Monday it looks more like they’re taking long weekends, rather than being out every Tuesday and Thursday which is more likely to be physical therapy."

Sometimes "abuses" aren’t clear-cut. Doran knew a nurse who was allowed to work under FMLA. "She didn’t like her supervisor and claimed it was creating an emotional disorder arising from working with this person. So - while covered under FMLA - she worked and got paid at another hospital. Is that really a medical condition, or just a bad employer? FMLA wasn’t designed to protect people from a boorish supervisor," he says.

Doran acknowledges doctors’ potential involvement with FMLA is not only that of employer, but as the person who helps determine if patients will be allowed leave from their jobs. "Physicians tend to have an empathic relationship with their patients and they tend to be happy to sign off on FMLA forms that just have subjective complaints. I’ve also had physicians who don’t worry [about how clinically accurate they’re being], if it gives the patient some measure of comfort. The employer can insist on a second medical opinion, and even go for a tiebreaker if necessary, but such opinions all come at the employer’s expense, so many are reluctant to pursue them," says Doran.

Implementing benefits counselors

The good news for most doctors running practices is that relatively few of the practices are large enough to be subjected to FMLA regulations. Where the practice is large enough, experts agree: don’t try to administer employees’ leaves alone.

"We have four benefits counselors here at Palmetto," says Payne. "Technically they cover a wide range of benefits, including retirement plans, but I’d estimate 60 percent of their time is devoted to FMLA work. I think doctors would be ill-advised to try and do it themselves," he says.

If you’re a physician seeking help to outsource your practice’s HR needs, including FMLA, Wallace offers this advice: "Look at the company’s HR experience, references, and the type of systems they have in place. Remember, as your practice grows, so do the situations and the demands on your time. It’s not unusual for a practice to end up needing an attorney they might not have needed if they had the right HR help," she says.

Ivey says that just as maternity leave was the main battle for female doctors seeking FMLA 20 years ago, "the next real challenge as the sandwich generation moves forward will be women who assume the caregiving burden. Where I work [at the University of California at Berkeley], people are so good about it. If you’ve accrued sick leave, you take the time. If you haven’t, FMLA protects people’s jobs," she says. For male physicians, it seems easier, Metzger says in his experience, "Most male physicians find a caregiver; they rarely take time off for that."

If you’re a physician working for a larger facility, don’t hesitate to ask the HR manager or a department head (who will likely pass your request to HR rather than trying to answer it) for more information on your FMLA benefits. According to Abner, "Doctors are not well-versed in their benefits. They’re accustomed to taking time off and going home when they are ill. And even though we go over it in our orientation, most physicians don’t find out about it until they really need it," she says.

That’s a mistake, experts agree. Doctors should not wait until a crisis arises. Just like retirement planning, this is something that should be determined before you need it. FMLA rights will probably be something physicians need to be more aware of as they, their loved ones, and colleagues grow older, and caregiving and long-term health problems become greater issues for everyone.



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