Emergency physicians take care of patients 24-7-365. Yet we are not immune to life transitions and challenges, including personal and family medical and life events. For too long, family leave has been presented mainly as a women’s issue. In reality, it affects everyone. Today, families are created in various ways: biologically and via surrogacy, adoption, and fostering. Allowing time off only for biological mothers promotes the antiquated idea that caring for children is women’s work; this is both paternalistic and unfair to men (including same-sex male parents) who want to share the parenting load and be home during those special early weeks and months.

While we all hope to work for groups and organizations that understand this concept and voluntarily commit to practices that promote a fair workplace, it is also important to know the legal protections available for those who require family leave.

Workplace Discrimination Protections

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information. Title VII also applies to private and public colleges, universities, and employment agencies.¹ When discrimination occurs, physicians have various options to address the problem. It can be reported internally to the organization, for instance with the assistance of human resources or employee-assistance programs. A formal charge can also be placed with the U.S. Equal Employment Opportunity Commission (EEOC).² A full list of laws enforced by the EEOC can be found at www.eeoc.gov/laws/statutes/index.cfm.

In 1978, the Pregnancy Discrimination Act amended Title VII to prohibit discrimination on the basis of pregnancy.³ During employment interviews (and, later, during promotion or leadership decision making), inquiring about pregnancy status or future family plans or asking about children is illegal. Such inquiries can lead to civil lawsuits for discriminatory hiring practices. While some of these inquiries are well-intentioned attempts to get to know prospective employees better, some groups have illegally avoided hiring women who have or plan to have children. If the prospective employee brings up the topic, it may be discussed. There are other examples of inappropriate inquiries during interviews and the hiring process, and it is recommended that leaders provide guidelines and training to all personnel involved in the interview and hiring process. At a minimum, all personnel should be familiar with the topics that cannot be asked about during interviews.⁴

Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) allows up to 12 weeks off each year for family or medical reasons to eligible employees of companies with 50 or more employees.⁵ Personal serious health problems that preclude performance of the job are permitted leave. In addition, care of family members defined as spouse, child, and parent with serious medical illnesses is also protected under the law. Leave may permissibly be taken after childbirth, adoption, or foster placement.⁶ To be eligible, employees must have worked a minimum of 1,250 hours in the previous year. Employers are required to maintain employee health insurance benefits during the time taken for FMLA leave. This period includes pregnancy loss.

Additionally, depending on the state, women who give birth may be able to apply for paid sick leave or partial wage reimbursement covered by state temporary disability insurance. Women at high risk of miscarriage may be eligible for workplace accommodations under the Americans with Disabilities Act. The following website is a resource regarding legal protections and miscarriage.

Know Your State Family Leave Protections

Several states have additional family protection leave laws. For example, California offers paid family leave that is funded through state disability insurance via state tax withholding.⁷ The plan allows for 60 to 70 percent of income (calculated from the previous 12 months of work), with a maximum weekly benefit of $1,252.⁸ For most emergency physicians, this is equivalent to a single shift at best, but over the course of six weeks, it does provide some support. This website provides a comparison of family leave laws and regulations by state.

Future Directions

Many of the current laws are not optimized for emergency physicians. For example, many emergency physicians work for groups with fewer than 50 employees, meaning that the protections under both the FMLA and the Affordable Care Act do not apply. For those who are employed in groups with 50 or more employees, the minimum of 1,250 hours of work required in the previous year can cause physicians to delay starting a family or preclude taking time off even for personal or family illness. Many physicians have already postponed starting a family as a result of the burdens around medical school and residency. Lastly, FMLA is unpaid leave. Lack of paid parental leave has been associated with poor parental and infant outcomes, including spontaneous abortion, preterm labor, infants who are small for gestational age, depression, and breastfeeding noncompliance.^9-11 So while current laws provide some options for emergency physicians, there is much room for improvement.

There are some emergency medicine organizations with progressive family leave policies, including Acute Care Solutions and Vituity.^12,13 However, only 50 percent of emergency physicians report having a formal parental leave policy in their workplace, and as many as 36 percent are dissatisfied with policies they do have.¹⁴ With the American Academy of Pediatricians recommending 12 weeks of parental leave as the minimum necessary for healthy children, it must be asked, when will all of emergency medicine support our physician parents?¹⁵ When Walmart has a more progressive parental leave policy than the majority of EM workplaces, we really need to ask ourselves, beyond the laws, if we are doing enough for our fellow physicians.¹⁶ 

Dr. Austin is adjunct clinical assistant professor at LAC+USC Medical Center and Keck School of Medicine of USC in Los Angeles.

Dr. Kalantari (@akkalantari) is associate residency program director at Penn State Health and Milton S Hershey Medical Center in Hershey, Pennsylvania.

References

1. Know your rights: Title VIII of the Civil Rights Act of 1964. American Association of University Women website. Accessed Aug. 13, 2019.
2. Filing a charge of discrimination. US Equal Employment Opportunity Commission website. Accessed Aug. 13, 2019.
3. The Pregnancy Discrimination Act of 1978. U.S. Equal Employment Opportunity Commission website. Accessed Aug. 13, 2019.
4. Prohibited employment policies/practices. US Equal Employment Opportunity Commission website. Accessed Aug. 13, 2019.
5. The Family and Medical Leave Act of 1993, as amended. US Department of Labor website. Accessed Aug. 13, 2019.
6. Family and Medical Leave Act. US Department of Labor website. Accessed Aug. 13, 2019.
7. California State Disability Insurance (SDI): the details. Disability Benefits 101 website. Accessed Aug. 13, 2019.
8. Fact sheet: miscarriage and workplace rights. A Better Balance website. Accessed Aug. 13, 2019.
9. Section 7(r) of the Fair Labor Standards Act—break time for nursing mothers provision. US Department of Labor website. Accessed Aug. 13, 2019.
10. Avendano M, Berkman LF, Brugiavini A, et al. The long-run effect of maternity leave benefits on mental health: evidence from European countries. Soc Sci Med. 2015;132:45-53.
11. Calder LA, Cwinn AA. Accommodating pregnant emergency physicians. CJEM. 2014;16(4):259-261.
12. Paid parental leave for clinicians. US Acute Care Solutions website. Accessed Aug. 13, 2019.
13. Vituity’s parental leave stipend: truly partnering with new parents. Vituity website. Accessed Aug. 13, 2019.
14. MacVane CZ, Fix ML, Strout TD, et al. Congratulations, you’re pregnant! Now about your shifts…: the state of maternity leave attitudes and culture in EM. West J Emerg Med. 2017;18(5):800-810.
15. Major pediatric associations call for congressional action on paid leave. American Academy of Pediatrics website. Accessed Aug. 13, 2019.
16. Carmicheal SG. Why Walmart expanded parental leave—and how to convince your company to do the same. Harvard Business Review website. Accessed Aug. 13, 2019.