Can a dermatologist be sued under the Family Medical Leave Act?

September 1, 2013

Dr. Derm has become very successful in his 20 years of practice. He now runs 16 offices with 82 employees - most of them full-time. Among his many coveted employees is his 37-year-old nursing clinical coordinator. She has worked with him for more than 10 years and oversees all of the many nurses and medical assistants in the office. Her role is of enormous importance to Dr. Derm and for this she is paid well.

 

Dr. Derm has become very successful in his 20 years of practice. He now runs 16 offices with 82 employees - most of them full-time. Among his many coveted employees is his 37-year-old nursing clinical coordinator. She has worked with him for more than 10 years and oversees all of the many nurses and medical assistants in the office. Her role is of enormous importance to Dr. Derm and for this she is paid well.

Two years ago, the nurse notified Dr. Derm that she was pregnant and would be leaving the office to have her baby. She assured Dr. Derm that she will return to her position one month after delivery.

Dr. Derm knows that he cannot run the office without this nurse. He quickly finds a replacement and makes it clear to the replacement that he will rehire his nurse upon her return from maternity leave. Much to Dr. Derm’s surprise, the temporary nurse turns out to be outstanding in her role as clinical coordinator. Because she is a new hire, she is also being paid 25 percent less than his long-time nurse.

On the 31st day post-delivery date, Dr. Derm realizes that his long-time nurse has not returned to work. He calls her home and cell phone repeated times over the next several weeks and is unable to reach her.

Back to work

Six weeks after the nurse left, Dr. Derm assumes she will not return. He offers the new nurse a permanent job. Both employer and employee are delighted. On day 64 post-maternity leave, his former nursing clinical coordinator returns to work, expecting her old job and salary. Dr. Derm responds by saying it is unreasonable to be gone almost three months and expect to come back to the same job and salary. He offers her a lesser job and lesser salary. If she does not take the job, she is told she will be terminated. She responds by demanding her old job and salary or she will sue Dr. Derm. Who is legally in the right?

The Department of Labor’s Employment Standards Administration’s wage and hour division administers and enforces the Family and Medical Leave Act (FMLA) for all private, state and local government employees, and some federal employees. The FMLA entitles eligible employees to take up to 12 work weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons.

The FMLA applies to all public agencies and private sector employers who employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year. To be eligible for FMLA benefits, and employee must work for a covered employer, have worked for employer for the employer for a total of 12 months, have worked at least 1,250 hours over the previous 12 months, and work at a location in the United States where at least 50 employees are employed by the employer within 75 miles.

Granting leave

A covered employer must grant an eligible employee up to 12 work weeks of unpaid leave during any 12-month period for one or more of the following reasons: 1) for birth and care of a newborn child of the employee; 2) for placement with the employee of a son or daughter for adoption or foster care; 3) and to care for a spouse, son, daughter or parent with a serious health condition.

Of note is the fact that under certain circumstances, employees may take FMLA leave intermittently - taking leave in separate blocks of time for a single qualifying reason - or on a reduced leave schedule, reducing the employee’s usual weekly or daily work schedule. However, if FMLA leave is for birth and care, or placement for adoption or foster care, use of intermittent leave is subject to the employer’s approval.

In addition to holding both the salary and position of the employee, FMLA-covered employers must also maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave although in some instances the employer may later recover these paid premiums.

I would appear that under the FMLA act, Dr. Derm is, at day 64 post-delivery, required to give back his nursing coordinator both her previous job and previous salary. If he does not, she can file a complaint with the Department of Labor. If he is in violation, and the violation is not resolved, the Department of Labor may bring action in court to compel compliance.

Lastly, his employee may also be able to bring a private civil action against Dr. Derm. He would be wise to bring his employee back to her position and salary.