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The Family and Medical Leave Act of 1993 was developed to provide a set of guidelines as to the obligations of the employer and the rights of the employee when time off work is needed; such as with maternity or parental leave, a sick member of the family, a death in the family etc.
Thus, the Act functions as a boundary between worker and employer responsibilities to themselves, each other and the wider community. The document and its guidelines can be referred to when a decision needs to be made about time off work/leave time, especially when the circumstances are ambiguous. However, it appears from the literature that many physicians and other health management personnel remain unaware of their rights within the workplace with regards to leave, health needs, compensation or termination of employment. For this reason it is critical that undergraduate physicians and other health management service workers seek to educate themselves about ethical and legal obligations for themselves and their employer.
Contemporary health service delivery requires multi-disciplined teams tailored to the particular characteristics of the client. Cross discipline integrating and pooling of resources has lead to an overlapping of social, healthcare and administration skills. Also, there is greater awareness of the needs of bonding for families, of which each team member is a part of in some way. Workplace satisfaction, engagement with the critical needs of patients/clients and positive outcomes for the physician, their employer and wider society requires that employee needs and expectations from their employer be clearly delineated.
The FLMA states that an employer is to grant an eligible employee up to 12 weeks (3 months) of unpaid leave within a 12-month period. Eligibility is determined by the reason for leave; for example, birth and child care; adoption/foster care placement; to car for an immediate family member; serious health condition. An amendment on January 16, 2009, known as the final rule, gives military family leave entitlements, as part of the National Defense Authorization Act, 2008. Hence, military health management workers will have additional job-protected leave rights for serious injury or call to active duty.
The Acts appear clear cut; however a few court hearings have shown this not to be the case and have opened the area of contention open for discussion. An important distinction was made between worker’s compensation and the FLMA by a federal Court of Appeals in Chicago. An employer is not obligated to pay an employee with a medical condition who chooses light duties as part of their compo or salary plans. In Hendricks v. Compass Group, USA, Inc., No. 06-3637 (7th Cir., August 6, 2007) it was emphasized by the judge that the FLMA is unpaid leave. It was recognized that the FLMA is complex and overlaps with worker’s compensation programs. Though unpaid the employee is able to receive compensation whilst on unpaid FLMA by using their sick days, vacation time and other accrued leave. Alternative compensation programs allow the employee to choose light duties instead of FLMA.
The Judge also noted that the employer is required by FLMA to restore an employee their prior position or “an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment” when the 12 weeks of unpaid FMLA leave run out. However, this right is lost if they are unable to perform the functions of the prior position.
Such issues also call into question at-will employment termination by employers, as this does not shield the employer from litigation by a former employee (Dannin, 2007). Having no reason to fire a person is not logical, and given the wide range of circumstances in which an at-will termination may take place leaves responsibility for policing the policy up to businesses, which is not time or cost efficient (Moynihan, 2005). LoPresti based his decision to stop referring patients to certain specialists on his ethical duties as a physician, as set forth in the American Medical Association’s Principles of Ethics, Rutland’s internal Code of Ethics, and Vermont state law (Moynihan, 2005). He won, with the Court determining that ethical standards must be specific to the context. The decision made was to provide guidelines that plaintiffs were expected to meet;
- When the employer instructs the employee to act unethically
- An unethical act transgresses public policy
- Termination transgresses public policy because the employee refuses to act unethically
- Refusal by the employee is grounded in a belief that to act in such a way should e unethical.
References
Dannin, E. (2007). Why at-will employment is bad for employers and just cause is good for them. Labor Law Journal, 58(1).
Employment Law Information Network (2003). FMLA. Web.
Moynihan, K. (2005). Physician Employment: At-Will Employment Contract Does Not Insulate Employer from Claim Based on Violation of State Public Policy-LoPresti v. Rutland Reg’l Health Servs., Inc.1. American Journal of Law and Medicine, 31(1), 135-137.
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