American Dental Association (ADA) legal counsel Cathryn Albrecht discusses family leave in dental offices. What rights do owner dentists have? What rights are reserved for staff? What's the best approach to keep both sides respectful and happy?
This is episode two of Beyond the Mouth, a podcast series in which ADA’s Dr. Betsy Shapiro chats with a diverse group of people who can help with the non-clinical challenges dentists experience every day.
This episode was released on January 30, 2019.
Cathryn Albrecht, Esq.
Cathryn Albrecht is Senior Associate General Counsel of the ADA. She earned her law degree from Loyola University of Chicago School of Law in 1991, where she graduated cum laude. She holds a bachelor’s degree in Communication Arts from the University of Wisconsin-Madison. Cathy joined the ADA in 2009 after 18 years in private practice, primarily in the area of employment law. As Senior Associate General Counsel, Cathy’s responsibilities include working on various litigation and legal advocacy matters, assisting with human resources matters, addressing insurance coverage issues, and assisting the Director of the Council on Ethics, Bylaws and Judicial Affairs in handling that Council’s matters and responsibilities. Cathy also serves as a legal liaison to the Joint Commission on National Dental Examinations, the Commission on Dental Accreditation, the Council on ADA Sessions, and the Committee on International Program Development. In addition, Cathy is a member of the ADA Risk Management Team.
Dr. Betsy Shapiro: Welcome to the ADA practice podcast Beyond the Mouth where we won't discuss clinical dentistry, but everything else is fair game. I'm Dr. Betsy Shapiro, a director with the Practice Institute of the American Dental Association and I'm here with Cathryn Albrecht. Cathryn is senior associate general counsel at the ADA and she's very well versed in labor and employment law. When we talk about labor with Cathryn, we generally mean workforce, but in this episode we're going to focus on a different meaning of that word and talk about maternity leave. I want to give a little disclaimer here. Cathryn is a lawyer and is very helpful in sharing tips, but she's just sharing tips. We want to be very clear that she is not giving actual legal advice. I'm a member dentist, she's not my lawyer and she's not yours. Simply, she's just doing her best by talking through the things that we need to think about on this particular topic. So welcome to the show, Cathryn .
Cathy Albrecht: Hi Betsy. Thanks for having me.
Dr. Betsy Shapiro: We're glad to have you. We're talking about maternity leave and I understand that there is a very broad field of rules and regulations on different levels that apply to this. Could you give us an overview of what they are for starters?
Cathy Albrecht: Sure. And I think that's a good idea. It can be very confusing and for some, kind of daunting. But there are a couple of different categories and I think that that would help. The first, and one of the biggest parts of this that sort of relate to maternity leave is Title VII of the Civil Rights Act of 1964. Which is the big federal anti-discrimination law that prohibits gender discrimination and sex discrimination among many other things in the workplace. So that will require employers to treat female and male employees with equal consideration and not to favor one over the other or disfavor one over the other.
Title VII is the federal act. It's been amended by the Pregnancy Discrimination Act of shortly thereafter, I want to say 1978. And so now all of that has been rolled together and the issue of maternity leave and pregnancy related conditions does relate to pregnancy conditions.
The other big one out there is the FMLA, which is the Family and Medical Leave Act, which provides job protected leave and that's an important one. Your job is protected. You leave for a while, you come back and you get your job back or an equivalent job, if there's some issue with that. But basically provides up to 12 weeks of job protected leave for employees of companies of a large enough size. So with a family medical leave act, it applies to employers with 50 or more employees within a 75 mile radius. So it's pretty big group practice and the first one, Title VII and the Pregnancy Discrimination Act amendment applies to those with 15 or more employees.
There's also the Americans with Disabilities Act, which deals with how employers need to accommodate issues with disabilities. And that again has a small business exception of like 15 or 20 employees. So there's a lot of laws out there on the federal horizon, there tend to be small business exceptions. But state and local localities may also have parallel laws and they may actually provide greater benefits and it's those greater benefits, whatever the best benefit is, that's what you would get in your area. So you really need to do some research before going into this because it gets a little complex.
Dr. Betsy Shapiro: You talked about the Americans with Disabilities Act, which of course here at the ADA we refer to that as the other ADA. Do they consider pregnancy a disability?
Cathy Albrecht: Functionally, yes. Pregnancy and pregnancy related conditions are covered as they are under the pregnancy discrimination, there's kind of an overlap. What the Americans with Disabilities Act provides is a requirement to reasonably accommodate. Which is very similar to what we might find if you know, someone develops a life threatening disease or something. Pregnancy can create some conditions that are, for the purposes of application of the act, considered disability. Things like gestational diabetes or early dilation or you know, something giving rise to high blood pressure. Those kinds of things may need to be accommodated under the Americans with Disabilities Act and, these anti-discrimination laws.
Dr. Betsy Shapiro: Here's what I need to know. What do I get and what do I have to give when it comes to maternity leave?
Cathy Albrecht: Well, I think it's a popular misconception among pregnant ladies that there would be some sort of accommodation in the workplace that would permit them to take some time off of work and take care of the baby and then come back and resume their work with the practice.
The one thing that I think folks need to keep in mind is that not every practice will be covered by the laws that afford folks leave. And I guess what I would say is, don't assume that you're necessarily going to get job protected leave. That is, leave that you can come back from. And number two, don't expect that it's going to be paid. In many places it will be, but you really need to check first.
Dr. Betsy Shapiro: So that's interesting. When you said that we often assume that everyone is entitled to this, but that not every practice is covered. Why wouldn't a practice be covered?
Cathy Albrecht: Well, it has to do with the web of laws that protect employees in this situation. And there are a number of parallel sort of schemes. One is the federal legal process, one is the state process, and there are also local processes. And in each one of those stages, and it's a little difficult to generalize except to say that a lot of these laws have small business exceptions. Which means that if the practice does not have more than 15 or 20 employees, they're not covered by the laws that would afford leave. Now, that will vary from state to state and locality by locality, which is why I say that.
Dr. Betsy Shapiro: If there are all these levels of laws: federal laws, state laws, local laws, which one trumps and how do I figure that out?
Cathy Albrecht: Well, the way to figure it out as the one that gives you the most, it's the one that you would expect. So which law protects me the most? So it could be that federal law, because the practice only has 10 employees, doesn't cover me to protect my job while I'm gone. But it could be that a state law says that any business that has one or more employees is covered. So the law that will apply to you is the one that is most advantageous to you. You need to sort of look at all of these things, but the good news is that you'll get the best that's available to you.
Dr. Betsy Shapiro: That's encouraging. At least I like that part of it. So you said something else that didn't sound quite so lovely, that it would be various whether or not I was entitled to leave or not entitled to leave and what that might be. But you also said I might not get paid. Really?
Cathy Albrecht: That's true. I think it's important to keep in mind that there are a couple of different ways that you can be paid during your pregnancy leave. One is disability and that's something that covers the period of convalescence after giving birth.
The other is actually leave that's designed to afford a parent time to bond with the child. And what that means is that you may be afforded some time under federal law or state law or local law to just bond with a child. And again though, make sure that you're not in a small business exception.
Let me say one more thing on the leave. We've been talking about the ability to have leave and that there's these different state and federal laws. And there are a couple of different kinds of laws. Anti-discrimination laws, the laws that protect employees against sex or gender discrimination, are often applied to decide whether or not someone is entitled to leave or entitled to any consideration as a result of a pregnancy. And again, that's one that you need to have 15 or more employees in order to be covered by. And so that's, that's an anti-discrimination law. You cannot deny to a pregnant person something that you would afford to any other employee, for any other reasons.
So for example, if your practice affords folks a period of light duty or a period of leave as a result of a workplace accident, they could not also deny that kind of leave to a parent.
There's also the Family and Medical Leave Act, which requires you to have even more employees. And we're seeing some practices that would fit these criteria. So the Family and Medical Leave Act protects individuals that work for businesses that have 50 or more employees within a 75 mile radius, right? So if you have a number of different locations and in total, within 75 mile radius, and they have a total of 50 or more employees, then you are entitled to the protection of the Family and Medical Leave Act. Which will give you 12 weeks of protected job leave for various different conditions. And that includes pregnancy and um, bonding with the child afterwards.
So there's, there's really a few, if you think about it as a Venn diagram, you've got a whole lot of different laws in there. And hopefully in the middle you've got some area that there's overlap that will give you some leave. And when I say job protected leave, what that means is, you would leave before the birth of your child and that you're entitled to come back at the end of the leave. Not every job would be like that.
Dr. Betsy Shapiro: Would you be entitled to come back to the exact same job? Do they have to hold that one for you?
Cathy Albrecht: It depends. Technically they have to replace you back to the same or have an equivalent job. Which could be maybe not necessarily the exact same hours or the same schedule, but it needs to be functionally the same level of job and the same kind of job. And typically, I would say in a typical dental practice, that shouldn't be a problem getting people back to work.
Dr. Betsy Shapiro: What if I don't have any particular maternity leave in the practice I work in? But the dentist, the owner dentist, has always given any of the women who've had babies six weeks off unpaid. Can he make me take my vacation time first, before I go to that six weeks?
Cathy Albrecht: It depends on what the policy of the practices. There are limitations on it. If you're covered by the Family and Medical Leave Act leave. But generally speaking, if the employer has a practice of doing it for other folks, other women, you would have an argument or other people, you'd have an argument at least if the practices large enough that, that you're entitled to those protections.
Dr. Betsy Shapiro: Talk to me a little bit about pay protection and what that means.
Cathy Albrecht: First of all, it's a competitive advantage for employers. And I think what you're seeing, you're seeing States more and more providing paid and sometimes localities. I think San Francisco has a paid medical leave for a certain period of time. And I don't think it's a coincidence really that you're seeing more and more locations affording leave as a competitive advantage to attract people to the practice. So it could be that the practice would just simply as a matter of an employee benefit, and to attract talent, will have a leave benefit. But otherwise the practice will have it. It can decide whether to have it or not have it. If it does have it, it will need to make it generally available, outside of the period of recuperation, the same general leave requirements available also to men.
Dr. Betsy Shapiro: Okay. Well when they talk about leave benefits, does that mean just my salary or will they still cover my insurance that I've been getting as an employee there or does that differ?
Cathy Albrecht: People tend not to ask those questions and find out or maybe be disappointed afterwards. So it is important to ask. But no, they will not necessarily. The employer can decide what their policy is, whether it's paid or not paid. The Family and Medical Leave Act for example, says that you can make an employee use their vacation time first or use their sick time first and make it, you know, compensated that way even though they don't give paid leave. But you really have to understand what the employer's policy is, as a general matter.
And going back again to workers' comp. If the practice would, if anybody else got injured on the job, male, female or non-pregnant, if they would be afforded leave, if they, whatever the terms are with that person's leave, they'd follow the same terms. They would have to, they'd be legally obligated to follow the same terms with the pregnant employee.
Dr. Betsy Shapiro: Interesting. So I guess there are a few outlier questions that I'd like to ask, and you can see if you want to answer them or not. But what if I'm the owner dentist and I'm going on maternity leave? Do I have to pay my staff while I'm on maternity leave?
Cathy Albrecht: No. No you don't. And actually the difference between you and one of your employees is that you are the employer, not the employee. And what we've been talking about are employee protections. No, you don't have to.
Dr. Betsy Shapiro: I ran across another instance, a dentist friend of mine built her practice, lovely practice and put in a nursery because she knew she wanted to have a family. And she was one of these people who was great, in that her due date was this and she planned to take two weeks off from maternity leave. She delivered on the day she was due. She took her two weeks, she came back to the practice with the nursery there so that she could have the baby with her. And then, under that “other duties as assigned,” asked her staff to, you know, step in and change a diaper and do things like that. Which for her went well. But are there problems with that?
Cathy Albrecht: Well I can't say that there would be legal problems with that. I could imagine there being just sort of personal conflict issues with that. I mean, I wouldn't necessarily go shopping for a anniversary present for my boss either, if my boss asked me, but it's nothing illegal about it.
Dr. Betsy Shapiro: Would she also have to let her staff use that same nursery when they had children?
Cathy Albrecht: Not necessarily.
Dr. Betsy Shapiro: When you're the boss, you get to make those decisions?
Cathy Albrecht: Yeah, that’s one of the perks of being the boss.
Dr. Betsy Shapiro: There should be some.
Cathy Albrecht: Yeah.
Dr. Betsy Shapiro: What about, if I'm in the middle of my pregnancy, and I need to go on bed rest? Is that different than any of these other things? You know, we're talking about the post-pregnancy, the stress of delivery and things like that. But if its bed rest that my doctor has prescribed?
Cathy Albrecht: Well, if your doctor prescribes bed rest and you're covered by the anti-discrimination laws, that is the ones that protect against gender discrimination because you have 15 or more employees, or because the locality follows it, they would be required to afford a pregnancy related disability. Things like gestational diabetes, early dilation or the like, those would need to be accommodated just like any other disability, like a medical disability. It's just a rather unusual sort of situation because it typically isn't a longstanding disability. But that is something that the employer would need to accommodate in the workforce, if reasonable.
And the accommodation could include omitting some duties if necessary. Getting some time off, if necessary. And that would be job protected time off. So yes, if something like that arises, there would be protections either under the Pregnancy Discrimination Act, which is a sort of a part of the anti-discrimination laws or under a disability laws generally.
Dr. Betsy Shapiro: So you just referenced pregnancy-related conditions. What if I'm trying to get pregnant?
Cathy Albrecht: I think most people don't consider that. But things like in vitro procedures and the sort of preparation fertility procedures and the like, or the history of difficulty getting pregnant, or the history of miscarriages, are also protected. So that if you need to have time off in order to have a fertility treatment or what have you, the laws would also permit that. So those are the kinds of things that before, if you have trouble getting pregnant, you are working on procedures to get pregnant.
It also applies after birth. In the sense that if you are breastfeeding the baby, that would also be a pregnancy related condition that would require an employer to make it a convenient and find some accommodation to let the now new mom express milk at work, those kinds of things. And even some States will have, in fact, I think most States now have some requirements for employers that they make available a private space for women to breastfeed. So it's broader than simply giving birth to a healthy baby. It includes all of those related conditions as well.
Dr. Betsy Shapiro: Does any of this apply for adoption situations?
Cathy Albrecht: Yes. The Family and Medical Leave Act. It does give bonding time for a new adoption of a new child. There's a couple of different things that you wouldn't think of, but yes, it does provide for time for the adoption of a child.
There are also, if the child had a serious medical condition, there may be legal protections for the parent to continue to take care of that child going forward. If there need to be periodic doctor's appointments or the like. It can sometimes go beyond, even though the infant obviously isn't employed by the practice, the parent may have protections to care for the infant as well.
Dr. Betsy Shapiro: That's interesting, and it's comforting too. I think most dentists are caregivers. I mean that's part of the reasons we went into this field. We hate to make things be mandated, but it's nice to know that there are ways to make things work comfortably for everyone.
So if I'm coming in as an employee, I guess the takeaways for me are that I should read the policy manual really closely. And ask some questions of the owner about how they handle things. And on the third leg of knowing the laws in the area, is there a place to go look or how do I find out what they are?
Cathy Albrecht: Well, the best thing I think would be to just Google it. You'll find the federal agency that handles employment issues like these. The Equal Employment Opportunity Commission has pregnancy related guidelines out there, Q and A's for both employers and employees to use. There's a lot of resources online.
I guess the big takeaway I would have is make sure that you understand what your benefits are well in advance of your due date, so that you're not unpleasantly surprised. Because the sleep deprived aren't always the best researchers.
Dr. Betsy Shapiro: I think this is all very interesting. I know I have been here at the ADA for seven years and I know you've been here. Have you seen this field of law changing a lot as more and more women are entering the workforce?
Cathy Albrecht: Yes, very much so. And I would say I've been practicing in the area of employment law for over 20 years now, approaching 30 actually. And yes, it has changed. In fact Family and Medical Leave Act was new in my career. But what we're seeing more and more, and where I think things are moving, is to more and more states and localities, if they can afford it, industries that can afford it, of making these sorts of benefits available to women. If you look at the representation of females in dental schools, they're half the workforce easily. If not more. You know, people always want the best talent and I just think competitively this is where we're going. We've seen it in the last few years, particularly in the area of family leave because compared to Europe we're way behind. You know, many countries have paid leave and we don't. So for right now that's not a priority, but I think we're moving in that direction.
Dr. Betsy Shapiro: We really appreciate your time today, Cathryn, and enjoy so much all the different things you've told us. I think it's still a task that requires a lot of thought, both on the employer and the employee, when you're going into the situation. But you've given us some excellent points to think about as we go through it.
I would also add that through the Center for Professional Success at the ADA, at Success.ADA.org, we do have some resources for employers who are putting together a manual for their staff. It's under the Guidelines for Practice Success Staff issues. We have some resources on suggested language for your policy manual about these issues.
For any of our members who have questions, comments, or feedback, please feel free to email us at centerforprofessionalsuccess@ADA.org. That's one word, “Center for Professional Success at ADA.org.”
Dr. Betsy Shapiro: Now we're at the part of the show where we answered a question we received from a member. In the Practice Institute here at the ADA we get member questions every single day and this is one we'd like to share. It is in relation of course to maternity leave. My employee doesn't want to be around x-ray units or nitrous oxide units, despite the fact that we have dosimetry badges. And we have a nitrogen scavenger system that is excellent and we've never had any incidents. Do I have to allow this, for her to not be around?
Cathy Albrecht: Unless you're getting direction from a staff member’s doctor saying that their exposure needs to be limited, you don't need to take any action based on a person's fear. If a health professional had some very restrictive requirements on the person's activities, then you probably would need to accommodate in some fashion. But that may not necessarily mean them not doing any of their job, just sitting around all day waiting while someone else does it. But maybe taking some time off. So the answer is no, unless a doctor or healthcare professional is saying something.
Now on the other hand, you set the stage where you've got the badges. I'm presuming the equipment's being regularly maintained. If that were not the case, that could be more of a problem perhaps with a potential inadvertently causing something you didn't intend to. But that's typically not the case.
But the one thing I would add, just to bring home the point, it also doesn't work the other way. In other words, if you're a practice owner and you believe that your dental assistant should not be lifting heavy objects because they're pregnant, or they shouldn't be doing certain things, they shouldn’t be on their feet for certain things, and the employee is not asking you for that accommodation, you cannot make them stop doing those things either.
Dr. Betsy Shapiro: Oh, that's interesting. So you can't be a mother hen to your expectant mothers?
Cathy Albrecht: No, as much as you may want to, you cannot.
Dr. Betsy Shapiro: Well, thank you very much, Cathryn.
Cathy Albrecht: Thank you, Betsy.
Dr. Betsy Shapiro: It was just wonderful to have you here and give us some things to think about in some ways to approach navigating through the maze of maternity leave, for both ourselves as owners and as employees and for our employees if we are an owner, all those different avenues.
Dr. Betsy Shapiro: For those of you in the audience who have questions, comments, or feedback, please feel free to email us at firstname.lastname@example.org. That first part is all one word “Center for Professional Success at ADA.org.” We'd also like to thank our sponsor, ADA Member Advantage for their support and to Sandburg Media for producing this podcast. And thank you for listening to Beyond the Mouth.