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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 41220
Experience:  I provide employment and discrimination law advice in my own practice.
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I am a full time float physician working for the same healthcare

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I am a full time float physician working for the same healthcare company since 2006. I have a written contract stating that my workload is between 40-45 hours a week. I had a knee injury in July 2011, and have had reduced schedule FMLA claims since that time(all approved and always within my FMLA allotted time). I returned to a 32 hour schedule via FMLA in Feb. 2012, and then a 40-45 hour workweek on Nov. 2012. When I returned to my regular hours, I still had a medical restriction of not being able to work more than 2 hours alone as a single provider. This work restriction was made permanent by ny orthopedist on 5/24/13. Approximately at the end of June 2013, I received notice that they were reducing my hours(total reduction of 12 hours for the month of July 2013) secondary to change in staffing at some of the 10 centers among which I float and my medical restrictions. There was at least 200 hours staffed by per diems(physicians without any contract) on the July schedule, and yet they were unable to give me the 12 hours I needed to complete my regular full time hours. Is this legal? Also I have spoke to them about accomodating my disability since the medical restrictions are now permanent. Their reply is they are following my restrictions for the hours they schedule me to work. Is that the interpretation of accomodating a disablity under the law?
Thank you for your question. Please permit me to assist you with your concerns.

I am genuinely sorry that you are in this situation. What, if any, was their rationale for cutting hours, or are they focusing solely on the 2 hour restriction?
Customer: replied 3 years ago.

Their rationale is the reduction in my hours is primarily due to slight decrease in staffing hours in general for some of the centers(called FTE's which means whether a particular center is staffed with 1 physician,1.5 , or 2-3 physicians depending on the number of physician visits that the center had the previous month for example) and my medical restriction. However, the hours given to physicians who have no contract with the company is approximately 200 hours,and these physicians are placed in centers for hours in which I would be able to work based on my medical restriction.

Thank you for your follow-up, Teresa.

Now I see, so you believe this lowering of hours is ultimately retaliatory and based on your disability but not ont he fact that you can still perform the work. Have you discussed this yet with HR to see if they are willing to increase your hours or reverse their decision?
Customer: replied 3 years ago.

I have had a conversation with HR on 7/2 and again on 7/17. I did make suggestions as to were I could be placed on the current schedule which would enable me to meet my medical restriction/disablity and meet their staffing requirement. It was promised that HR would get back with me by 7/19/13 and I did not hear from them as I expected. I have to initiate all the calls. They promise they will get back with me by a certain date,and they do not.During one conversation with HR, I noted that a specific per diem provider was placed on the schedule where I could work.Regarding that specidic situation, HR said a physician assistant was cheaper than a physician and that is why this per diem provider was placed on the schedule instead of me. However, again, I have a contract as a full time provider,and that individual does not. In another conversation, HR told me that I was a nonessential employee, and that they could reduce my hours per the operating requirements of the company if they so chose.


Thank you for your explanation.

HR in this case is partially correct and partially out of line. It is true that the company can reduce your hours and the company can modify your schedule based on the needs of the employer. It is also accurate that the company can treat you and a per diem provider differently so long as that difference is not based on factors such as your age, gender, race, religion, national origin, creed, or disability if any. Here, arguably the difference is based on disability where you can still perform the work as you could in the past, albeit with some reasonable accommodations. Cutting hours, where you could still work full-time, is generally not reasonable. Consider speaking with HR and stating that you are seeking a formal response or you will consider contacting the EEOC (Equal Employment Opportunity Commission) and filing a formal grievance with them for disability discrimination based on the factors that you have been provided.

Good luck.

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