Understanding the Family and Medical Leave Act and what it requires can help medical practices avoid costly missteps.
Many physician practices are familiar with the Family and Medical Leave Act (FMLA), a federal statute that entitles certain eligible employees to take an unpaid leave of absence for designated medical and family reasons. Although many practices will offer FMLA-type leave, not all practices are required to since federal law applies only to employers with 50 or more employees working 20 or more hour work weeks in the current or preceding calendar year. Additionally, even if the employer is covered by the FMLA, employees are only covered if they have been employed for at least 12 months (not necessarily consecutive) and have worked at least 1,250 hours during the 12 months prior to the need for the leave. There are other considerations that need to be made in determining whether the law applies to your practice and many states also have state-FMLA laws which need to be considered as well.
An employee may take FMLA leave for multiple reasons, such as birth or adoption of a child, illness of a family member, or a serious medical condition of the employee. The most common issue my practice clients seem to face with FMLA is when an employee has taken a maternity leave of absence and is nearing the time when she will return to work. It is at this time that many employees often inform the employer that they are looking for certain modifications to their job position.
For an employer who has complied with the law by keeping the employee’s position open during FMLA leave, this can create a difficult situation. No employer wants to be perceived as insensitive to the needs of a new mother. However, an employee’s demands to change her schedule, hours of work or location upon return from FMLA leave is not always that simple. For some practices, a change in job description might require the hiring of additional staff to ensure proper coverage or require other staff to accept changes in their job description by working more hours, taking on schedules they were not hired to work, or transferring to other office locations. Is this fair to the employer and other staff, and what is an employer actually required to do?
The federal FMLA law states that an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with the equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such a reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence. In fact, the government specifies that the employee must be reinstated to the same or geographically proximate work site and to the same shift or the same or an equivalent work schedule. The FMLA, of course, does not prohibit an employer from accommodating an employee’s request to be returned to a different shift, schedule, or position to better suit the employee’s personal needs, but there is no requirement that the employer do so.
How can an employer handle this potentially awkward situation? Typically, the advice I give my clients is to remind the employee that the exact same job is available. This means the same schedule, same compensation, etc. If the employee asks for changes, the employer can accept or reject those proposals. The only guarantee the employee has is the same exact position with the same benefits. If the employee rejects the position (this should be carefully documented), the practice can find someone else to fill the position. If the practice has another position available within the practice and the employee desires that position instead, she can be offered the position with appropriate (not necessarily the same) compensation and benefits.
While many employers will go out of their way to accommodate a returning employee, this is simply not always reasonable and can create conflict within the practice. While it’s important to know what your practice must do to comply with the FMLA, it’s also important to know the limitations of FMLA and when your practice has satisfied the law.