#91240: The Role of Healthcare and Social Service Providers in Ensuring Access to Leave

Workers' own misgivings about their needs or entitlement may pose a barrier to leave-taking. Health and social welfare practitioners are uniquely situated to counsel workers about the need for leave-taking, as they are best equipped to convey the health impacts of working while injured or of having inadequate care for a loved one who is ill. While practitioners should avoid pressuring workers to take leave when they are financially unable to take time away from work, they should provide encouragement and counseling to workers who are hesitant to take leave out of discomfort about asking for help, denial about the seriousness of their situation, belief that leave-taking is only warranted in dire emergencies, fear of how they will be perceived if they take leave, or guilt about creating extra work for coworkers in their absence. Practitioners should emphasize the legitimacy of leave-taking needs and may wish to provide patients with language they can use to help mitigate any misunderstandings or misconceptions held by others, including employers, coworkers, and family members.

A 2018 survey by the U.S. Department of Labor revealed that about 6.9% of workers needed to take leave in the prior 12 months but were not able to do so; a 50% increase compared with the 2012 rate. The workers' reasons for not taking leave were largely related to economic security and job protection. Roughly two-thirds of "leave-needers" said they could not afford to take leave, a more than 40% increase compared with 2012 [4].

As discussed, the consequences of employer retaliation are far-reaching and may involve harm to the worker's health and well-being. Failure to take leave for a major illness can have an obvious and immediate health impact on an employee who needs to recover from an illness, or on a family member who needs the employee at home to provide care. In the U.S. Department of Labor's 2012 survey, 17% of workers who failed to take needed disability or caregiving leave did so because they feared losing their job [4]. In addition, 6% reported that their employer denied their request for leave, a significant decrease from 20.8% in 2000 [4].

However, a violation of FMLA rights is not always as simple as an outright refusal to allow leave-taking or to reinstate a position after leave. Employers also penalize workers for exercising FMLA rights in the form of ongoing retaliation, and this can create additional physical and emotional stress and further aggravate the worker's condition. In some cases, a worker may not even realize that the employer is retaliating or that the added stress may be harmful to his or her health.

Leave-taking retaliation can come in many forms, but the following are some examples of behaviors that may constitute retaliation, particularly if the actions are catalyzed or motivated in response to leave-taking:

Note that this list of scenarios is not intended to be all inclusive, but rather is meant to illustrate the variety of tactics employers may use to penalize workers who exercise their rights under the FMLA.

Providers should know that a worker's need for leave-taking may also be an escalating factor in existing racial or gender harassment of vulnerable workers. FMLA retaliation can be further complicated by the existence of racism, homophobia, ableism, anti-immigration bias, and other detrimental social factors present in the workplace and may therefore violate civil and human rights laws in addition to the FMLA. For example, people of color often report feeling that they need to over-perform to compensate for or live down racial stereotypes, and women often repeat this sentiment, particularly in positions and fields traditionally dominated by men [6]. Anything short of flawlessness may appear to fulfill stereotypes for already-biased employers, so people of color and women might be hesitant to "rock the boat" by requesting leave or even disability accommodations, and employers may penalize people of color and women more harshly than other employees for taking leave or may require more of them upon return to work in order to be "forgiven" for accessing their rights [7].

The need for leave itself may be used as a tool of discrimination or exploitation. For example, an employer might refuse to allow a male employee to take FMLA leave to care for his sick husband even though state and federal law protect leave-taking for legally married couples regardless of gender. A worker who relies on her employer for an immigration visa may find her immigration status in jeopardy if the employer chooses not to cooperate with her request for leave. Because retaliation is not always obvious, health and social welfare providers can assist vulnerable workers in accessing their FMLA rights by recognizing the more subtle forms of retaliation when patients discuss details of their work environment in connection with their effort to seek leave, and by documenting these acts to the extent that they interfere with patient health.

Health and social welfare providers play a key role in documenting the physical and mental health consequences of working while ill and working in a hostile environment. Providers who have been asked to document the health consequences of retaliation should consider, among other things, the retaliation's impact on the health condition for which the worker took leave; the retaliation's impact on the worker's stress level and overall well-being; and whether the increase in stress has generated, escalated, or contributed to any ongoing or new health challenges.

Documentation should focus on the patient's history and avoid drawing legal conclusions. For example, a provider might report that the patient was injured or became ill on a given date; that the provider advised the patient not to return to work for a certain period of time; that the patient told the provider the employer had refused to grant time off (or otherwise acted to prevent leave-taking); that the patient returned to work before it was medically advisable to do so; and that as a result of his or her premature return to work, the injury or illness was further exacerbated. It would also be appropriate to report any additional health problems that arose after the patient returned to work too soon, including physical harms, mental health stressors, and any other detrimental impacts that may be correlated to working while injured or ill. While it would be reasonable for the provider to conclude that the worker incurred damage to health as a result of returning to work while injured or ill, it would be inappropriate for the provider to state that the worker's health damage was the result of an FMLA violation, as this is a legal argument and should be made either by the employee or his or her legal representative.

Healthcare professionals should avoid offering legal advice and should ensure that patients do not interpret recommendations or suggestions as such. To avoid confusion, it may be useful to state outright that only attorneys are allowed to offer legal advice and to recommend that patients consult with an attorney if they have specific questions about their leave-taking rights. Patients should also be advised that seeking legal advice does not mean they have to file a lawsuit. Many patients will not need legal representation but may benefit from legal counseling about their rights based on their particular circumstance, recommendations to help them self-advocate, or some minimal assistance in enforcing leave-taking rights.

For many patients, consulting with a private attorney is not a feasible option. Providers should be prepared to refer patients to nonprofit legal organizations for advice and recommendations. Nonprofit agencies may provide representation at their discretion, but if legal action is necessary, they may also have referral lists of attorneys who will work on contingency or on a sliding scale.