Imagine having a similar conversation with one of your residents who is considering their first job offer:
SH: This is a pretty good contract for your part of the country. Is your new employer providing paid parental leave for the birth of your children?
Resident: Oh yeah, I’m totally covered—I have FMLA!
SH: Don’t be fooled! FMLA is not paid leave.
Explore This IssueACEP Now: Vol 37 – No 05 – May 2018
What Does FMLA Really Cover?
Implemented during the Clinton administration in 1993, the Family and Medical Leave Act (FMLA) is a federal law that guarantees unpaid leave for qualifying employees. The law mandates that employers with more than 50 workers allow an employee to leave for 12 weeks without fear of being fired and/or replaced, provided the employee has held that job for 12 months and logged at least 1,250 hours. Employees may be absent for 12 work weeks over a 12-month period for any of the following reasons:
- The birth of a child or placement of a child with the employee for adoption or foster care.
- To care for a spouse, child, or parent who has a serious health condition.
- For a serious health condition that makes the employee unable to perform the essential functions of the job.
- For any qualifying exigency arising out of the fact that a spouse, child, or parent is a military member on covered active duty or called to covered active-duty status.
- To care for a covered service member with a serious injury or illness when the employee is the spouse, child, parent, or next of kin of the service member (eligible for 26 work weeks leave unpaid).
Generally, employees need to make such requests 30 days in advance, assuming the need, such as pregnancy, is foreseeable. Some employers may require even longer notices. Employees who return from FMLA leave must be restored to their original job (or an equivalent position) with equivalent pay, benefits, and other terms and conditions of employment.
Residents often tell me that when they’ve asked a prospective employer about “paid parental leave,” they’ve been told the job offers FMLA protections. I am uncertain if interviewers realize that many take this as confirmation of paid leave. Interpreted correctly, the statement means, “Yes, you may leave, but don’t expect to get paid while you’re gone.”
FMLA does not pertain to employers with fewer than 50 employees. Many small groups fall under this exemption. Therefore, these groups are not required to give any leave. In fact, some groups are small enough that they may not have enough physicians to cover the vacant shifts.
Upon recently accepting a job, a physician I know was handed a two-page contract and told to reference the faculty manual for further details. The manual, which stated that faculty members were entitled to six weeks of paid maternity leave, listed no restrictions. However, when she arrived at her new job four months’ pregnant, she was told that she was ineligible for FMLA. Her employer explained that she did not qualify because she would not have worked there for one year or 1,250 hours by the time her child would be born.
In this case, it was up to the employee to school the employer on the law. She explained that her contract and FMLA were mutually exclusive. The terms of her contract alone qualified her for paid leave.
Paid leave is most commonly found in academic and hospital contracts. It can be more difficult to find this benefit in groups whose salaries are based on relative value unit (RVU) productivity or physician staffing or contract management groups. Some productivity-based groups argue that paid leave unfairly burdens working physicians, who essentially are forced to finance another employee’s leave with the RVUs they earn during the absence. Independent contractors are unlikely to find a contract with paid parental leave.
Paid leave can be negotiated. A successful negotiation often depends upon the demand for the position. A group with 10 interested people for every job is much less likely to negotiate than a group that is having a difficult time filling its positions. Physicians who are paid hourly prior to becoming a partner may be in a better position to negotiate paid leave. Presumably, the RVUs a new employee bills will outpace the hourly wage. In such cases, the group can use those profits to subsidize the employee’s leave without affecting fellow physicians’ RVU compensation.
Alternatives to Paid Leave
There are alternatives to traditional paid parental leave. Some employers, most commonly staffing and physician groups, offer low-interest loans to help physicians finance family leave. Commonly, these loan payments are withdrawn directly from paychecks when the employee returns to work. Other physicians are able to “bank” paid sick leave and use their sick leave to fund their parental leave.
There are many different practice types in emergency medicine—being an independent contractor, an employee of a staffing group, or a partner in a democratic group, just to mention a few. Our varied types of practice make it difficult to have a one-size-fits-all answer to paid parental leave, which is why it is so important for physicians to discuss the parameters of parental leave with their new groups and employers and to make sure it is addressed in their contracts.
Resident: Wow. I thought I was getting paid parental leave. Do I have any power to ask for paid leave?
SH: Yes! You bring valuable skills to the table. You have many job opportunities available to you. Not every negotiation will be successful, but you shouldn’t fear negotiation. It’s part of the contracting process. If you don’t ask for paid parental leave, it won’t be given to you. The more physicians negotiate for paid parental leave, the more commonplace it will become in our contracts.
Dr. Hoper is an emergency physician at East Central Iowa Acute Care at UnityPoint St. Luke’s Hospital in Cedar Rapids, Iowa.