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Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, Mt. Sinai School of Medicine, and Adjunct Professor of Law, Fordham Law School.
David J. Goldberg, M.D., J.D., discusses the Family and Medical Leave Act (FMLA) and what you should know to protect yourself and your practice.
Dr. Derm has a very successful practice with multiple offices. He recognizes that one of the reasons for this success is his ability to have loyal, long-term employees. Among the most loyal is his 38-year-old office administrator. She has worked with him for more than 10 years and oversees his 63 employees. Her role is very important to him, and she is paid well.
Two years ago, this administrator 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 employee. He quickly finds a replacement and makes it clear that he will rehire his loyal administrator upon her return from maternity leave. Much to Dr. Derm’s surprise the temporary employee turns out to be outstanding in her role. Because she is a new hire, she is also being paid 25% less than his long-time staff person.
On the 31st day post-delivery, Dr. Derm’s long-time employee has not returned to work. He calls her repeatedly over the next several weeks and is unable to reach her. Six weeks after she has left, Dr. Derm assumes she will not return, and he offers the new employee a permanent job.
On day 64, his former staff person returns to work expecting her old job and salary. Dr. Derm offers her a lesser job and lesser salary, saying it is unreasonable to be gone almost three months and expect to come back to the same job and salary.
He tells her she will be terminated if she doesn’t take this new position. She demands her old position and salary and says she will sue Dr. Derm.
Who is legally in the right?
The U.S. Department of Labor’s Wage and Hour Division administers and enforces the Family and Medical Leave Act (FMLA) for all private, state and local government employees, as well as some federal employees. The FMLA entitles eligible employees to take up to 12 workweeks 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, an employee must work for a covered employer, have worked for the employer for a total of 12 months, have worked at least 1,250 hours over the previous 12 months, and is working at a location in the United States where at least 50 employees are employed by the employer within 75 miles.
A covered employer must grant an eligible employee up to 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:
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, which reduces 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.
It would appear that at day 64 post-delivery, under the FMLA act, Dr. Derm is required to give his office administrator back both her previous job and previous salary. If he does not, she can file a complaint with the U.S. 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. Â
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