A healthcare employer’s primary mission is to provide appropriate medical care and treatment to patients. In order to provide such care, healthcare companies rely on the steady and committed presence of competent, licensed professionals who are ready, willing, and able to perform the tasks necessary to make sure patients’ needs are met.
Healthcare employers may experience significant challenges when trying to balance the needs of patients with the needs and rights of employees to have time off work for family or medical needs under the Family and Medical Leave Act (FMLA) or other similar state leave laws.
This article provides guidance for healthcare employers that may face unique challenges associated with complying with the FMLA while avoiding risks to patient care and safety.
General Legal Principles Under the FMLA
The FMLA requires employers to provide eligible employees with up to 12 weeks of leave in a 12-month period for (1) the birth of a child or the placement of a child with the employee for adoption or foster care; (2) the employee’s own serious health condition; (3) to care for a spouse, parent, or child who has a serious health condition; or (4) for qualifying exigencies arising out of the fact that a spouse, parent, or child is a member of the military on covered active duty or has been called to active duty status. In addition, the FMLA provides eligible employees with up to 26 weeks of leave in a 12-month period to care for a covered service member with a serious injury or illness, when the employee is the spouse, parent, child, or next of kin of the service member.
In order to receive FMLA leave, an employee must provide his or her employer with notice (given 30 days in advance or as soon as is practicable) of the need for leave. If the need for leave is due to the serious health condition of the employee or the employee’s spouse, parent, or child, the employee may be required to provide the employer with a completed medical certification signed by an appropriate healthcare provider that supports the need for leave and provides other pertinent information.
FMLA leave may be taken in a continuous block of 12 weeks or in blocks of time less than 12 weeks. Employees also may take FMLA leave on a reduced schedule or intermittently in increments as small as the amount of time that an employer counts in its payroll system.
An employee who takes FMLA leave must be restored to the position he or she held at the time the leave started or to a substantially similar position.
FMLA Challenges for Healthcare Organizations
Most employers find some aspects of providing FMLA leave to be a significant challenge to their business operations. However, the challenges for healthcare employers may have greater implications due to the potential adverse impact on patient care when employees are absent from work. Notably, a recent report found that healthcare employers had the second-highest rate of FMLA leave of any industry (hospitality employees were first), with 39 percent of their employees having an open FMLA leave at any given time.
Intermittent leave that is based on conditions that arise sporadically and unexpectedly (as opposed to intermittent leave for planned, scheduled treatments, for example) are particularly difficult for employers to manage. Examples of conditions arising sporadically and unexpectedly might include medically certified migraines, bowel disorders, and, more commonly, stress and anxiety. Healthcare employers have to schedule sufficient and appropriate staff to meet their patients’ needs and to ensure compliance with applicable regulations. In addition, they have to keep their labor budgets in line with business needs and, in many cases, consider Medicare/Medicaid and insurance carrier limitations. When employees are approved for intermittent leave and call out of work unexpectedly due to an FMLA-related reason, a healthcare employer may be left scrambling to find a suitable replacement (who possesses the appropriate licensing and professional credentials) on short notice. For example, if the situation requires the presence of at least one licensed registered nurse (RN), and the RN calls off work for intermittent FMLA leave, the employer likely will need to replace that employee with another RN. A licensed practical nurse (LPN), or certified nursing assistant (CNA) would not suffice.
Another issue that has become more common in the healthcare industry (and elsewhere) has been created by medical certifications indicating that particular employees cannot work in excess of 8 hours per day or 40 hours per week due to their serious health conditions. This becomes an FMLA issue when the employee is expected or requested to work in excess of the hours limitation such that the extra hours become FMLA “leave.” Healthcare treatments are not often subject to strict hours limitations.
Consider, as an example, the operating room where a nurse is assisting with an operation. The operation started at hour five of the nurse’s shift and was expected to last three hours. As may often be the case, the operation is taking longer than expected, and it is going to last past the nurse’s eighth hour of work. Is the hospital required to allow the nurse to leave, in the middle of the operation, to comply with her FMLA leave request? Unfortunately, there is not an easy answer to this question.
Techniques for Addressing FMLA Challenges
One of the problems employers have with the FMLA is that there is little room for “reasonableness”—the Americans with Disabilities Act’s concepts of “reasonable accommodation” and “undue hardship” do not factor into whether an employer has to provide FMLA leave. If an employee is eligible for FMLA leave and has met all the requirements for leave, the employer has to provide the leave, regardless of the potential effects or hardship on the employer’s business or, in the case of healthcare employers, patients.
Fortunately, the FMLA does provide healthcare employers with some tools they can use to try to limit the potential effects of FMLA leave.
First, in most cases, employers may want to consider requiring employees who are seeking FMLA leave to submit complete and timely medical certifications. The employer can then review a given certification to make sure it has all the required information and that the information provided makes sense. If there are inconsistencies within the medical certification, the employer may want to seek clarification; if the information provided does not sufficiently define the frequency and duration of the intermittent leave needs, the employer might want to demand that information.
Second, employers may want to consider whether to utilize the option of seeking a second or third opinion where they have reason to question the validity of the underlying reason for the leave and whether intermittent leave is appropriate under the circumstances. Given the potential costs and delays inherent in using this process, it is not something employers are likely to do as a matter of course, but it may be helpful in limited circumstances.
Third, employers may want to pay attention to whether employees’ intermittent leave requests comport with the information provided in their medical certifications. If an employee’s leave requests are more frequent or longer in duration than what is set forth in the medical certification, then the employer may be able to seek an updated medical certification. Similarly, if the leave requests follow a suspicious pattern—falling on Fridays and Mondays, for example, or requested when planned vacation requests were denied—the employer may have grounds to look into the matter further, including seeking an updated medical certification.
Fourth, it is important to remember that with respect to planned intermittent leave—i.e., for scheduled treatments—employees are required to cooperate with their employers in scheduling time off and have an obligation to schedule treatments, where possible, in a manner designed to cause the least disruption to their employers’ businesses.
Fifth, employers may want to consider developing and implementing well-designed and consistently-followed policies with respect to employees who call out of work for unplanned absences. Usually, these policies require that employees give a minimum amount of advance notice and report their absences to a particular person (usually their supervisors). Employees who fail to follow such policies—even when the time off is for FMLA leave—may be subject to discipline.
Finally, call-out or reporting policies may require employees to give reasons for their absences and, where they have approved FMLA leave, require that they give particular notice if the time off falls under FMLA leave. Poorly maintained records on this point can result in FMLA leave time not being accurately counted or preclude an employer from claiming that time off work was properly excluded as FMLA time.
FMLA leave requests are challenging for many employers, particularly healthcare employers given the potential consequences for patient care. Healthcare employers can use the FMLA tools at their disposal to keep a tight rein on intermittent FMLA leave, making sure that it is supported, justified, and used under the appropriate circumstances and in compliance with employer policies.
