By Deana Johnson, JD
Posted on April 15, 2009 – As a medical professional, you spend each day providing much needed treatment to others, but what happens when you, the provider, become the patient? This is occurring with increasing frequency due to many factors including: the stressful and sometimes dangerous correctional work setting; the aging provider population; the proliferation of protections for employees as patients and growing awareness of employees about these rights; and the increasing willingness of providers to seek help when needed. The resulting dynamic is application of general employment laws to the unique setting of correctional medicine.
Unique Challenges for Correctional Medical Providers as Patients
Patient One is an inmate who undergoes heart surgery and has a pacemaker installed. Upon return to prison life, there are various protections the medical staff can provide to assist the patient in a slow, safe recovery. Providers can prescribe work and recreational limitations that increase over time as the patient recovers, ensure minimal exposure to dangerous situations presented by other inmates, and provide ready access to medical and rehabilitative care.
Patient Two is a physician who works exclusively at a private medical clinic and undergoes the exact same surgical procedure. When the doctor is ready to return to work, the employer can usually make necessary accommodations. For instance, the employer could arrange, within reason, to limit the physician’s walking, lifting, physical patient interaction, etc. The doctor could be assigned the exam room closest to his parking space, have assistants bring charts and test results and make other minor changes to limit his physical exertion during recovery.
Patient Three is you: a correctional medical provider who undergoes the same surgery. In the correctional setting, the same accommodations afforded to Patients One and Two are far more difficult to replicate. First, the inherent risk posed by the patient population cannot be reasonably mitigated despite the employer’s best attempts; there is no simple way to limit your interaction with inmates who might pose a physical threat when you are least able to defend yourself. Your workspace is often far from the available parking and cannot be relocated. You do not have the luxury of assistants to do the lifting. Thus, it is far less likely that the workplace can be made as safe during your recuperation. This results not only in keeping you off of work for a longer period, it creates a hardship to your employer, who must to provide coverage during your absence.
Application of General Federal Laws to the Correctional Setting
As an employee and a patient, you have certain legal protections. The main one is the Family Medical Leave Act (FMLA). Assuming that you are eligible (i.e. have been employed for at least one year and worked at least 1,250 hours during the preceding 12-month period) and have a qualifying event, you are permitted up to 12 weeks of unpaid leave. In sum, this law prohibits your employer from taking adverse action against you based on your use of FMLA leave unless the employer can show an undue hardship.
For purposes of this analysis, we will assume that you, as Patient Three described above, are entitled to FMLA leave. We will also assume that your surgeon has cleared you to return to work on restricted light duty at the expiration of your 12-week FMLA leave. If you were Patient Two working at the private medical clinic, you are likely set to go back to work. However, as Patient Three, you do not have many of those accommodations available and, instead, work in a correctional facility where no light duty can be guaranteed and constant exposure to potentially dangerous inmates is part of the job.
If the private medical clinic opted not to allow you to return to light duty work, even though it had the capacity to make those changes, you might be able to pursue an FMLA claim. As a correctional medical provider, however, your employer has a much better chance of convincing the court and/or jury that it would be an undue hardship to try to create light duty work when, in reality, a prison simply cannot be made safe.
For this same reason, another law designed to provide protection to employees, the Americans with Disabilities Act (ADA) might not afford the same right to return to work for those employed in corrections. The ADA requires employers to make reasonable accommodation to the known physical or mental disabilities of an otherwise qualified employee, unless to do so would impose an undue burden on the employer.
If your heart surgery leaves you with a permanent impairment, you might fall under the category of persons protected by the ADA. The correctional employer’s obligation to accommodate your needs, however, differs vastly from the private medical clinic. If you can never again safely walk the distance from where you park to the prison medical clinic, the facility very likely does not have to create a new security checkpoint and entrance for you. If you cannot safely be around those who may try to physically harm you, as a correctional medical provider, your job cannot be reasonably changed to avoid this risk. While you could argue that a correctional officer could accompany every patient and stand close enough to protect you in the event of an attempted attack, the employer would counter that this request is an undue hardship and takes limited security staff away from other duties.
Solutions for Correctional Employees
This analysis is not meant to suggest that employees in the correctional environment are stripped of all protections afforded to others working in similar fields; however, it is clear that a correctional provider will have to plan carefully and advocate in a very specific way for accommodations during recovery. While Patient Two might have to do little to return to his medical clinic position during recovery, you as Patient Three and your physicians are going to have to act as your own advocate.
Before an event occurs that changes you from the all knowing provider to the unprepared patient, know your employer’s leave policies and your rights under the law. Analyze your resources so you know how long you can be out of work without pay and still meet your financial obligations. Many employees return early from FMLA leave simply because they need the salary, but your work setting may not provide the same luxury. Remember that although the FMLA guarantees you 12 weeks off work, each employer is permitted to set rules as to how much, if any, of this protected leave is with pay.
Once you learn that you are becoming a patient, bring as much specific information about your work setting to your physician as possible, and work collaboratively to document restrictions and a return-to-work strategy that is reasonable for the employer. You cannot afford to leave these critical decisions to the last minute and risk not being able to return to work as expected.
Finally, once you are able to return to work in some capacity, keep the lines of communication with your employer completely open and document all conversations, requests for changes in conditions and other issues. The goal is to provide your employer with as much information as possible so that accommodations to your changing needs can be made and that provision of patient services continues during this period.
With this approach, the medical provider turned patient can actually make the best employee and one that the employer will work to keep even with the challenges of the correctional environment.
Ms. Johnson is an attorney with Insley and Race, LLC, in Atlanta, Georgia. Readers may contact her at djohnson@insleyrace.com.
