Perfect Attendance
with Endless Time Off
The Family and Medical Leave
Act—designed to simplify when
to give employees a leave of absence while
still guaranteeing
their jobs—has instead created
confusion and chaos.
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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
According to the U.S. Department of Labor
(which administers FMLA and publishes the Family and Medical
Leave Act Advisor on line at www.dol.gov/elaws), 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.
Confusion sets in
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 difficulties
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.
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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 Metzger 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, 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.
