Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, August 21, 1994 TAG: 9408210100
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: BETH MACY STAFF WRITER
DATELINE: LENGTH: Long
Sharla Cooper knew her fourth pregnancy would be high-risk. She'd already had two miscarriages and one premature baby, who died in her arms 90 minutes after birth.
As a Community Hospital neonatal nurse practitioner, she had spent seven years treating sick, premature babies and helping women like herself struggle with the consequences of complicated pregnancies.
So Cooper wasn't surprised when her doctor ordered her to stop working and confined her to bed halfway into her fourth pregnancy. Nor was she surprised when the doctor hospitalized her at 22 weeks, beginning an aggressive treatment strategy that kept her in and out of the hospital and on powerful labor-stopping drugs for the rest of her pregnancy.
What did surprise Cooper and many of her colleagues was the way Community Hospital handled the situation:
Three days before her scheduled delivery date, her supervisor came to her hospital bed and fired her, citing the new Family and Medical Leave Act as the cause.
"It's ironic, given her years of experience taking care of the premature infants of others, that she was penalized for finally having a successful pregnancy," says Dr. Lynn Keene, a former colleague of Cooper's in the neonatal intensive care unit, as well as her physician.
"I thought it was not appropriate for that kind of information to be relayed when someone is in the hospital and on a medication that alters their mental status," Keene says.
The act, passed last August, was intended to give employees 12 weeks' leave to care for children, ill relatives or their own debilitating medical condition.
While the leave is unpaid, employers are required to allow it without retribution. They also must continue the employee's health-care benefits and give the employee the same job or an equivalent one on return from leave.
No one says that Community's leave policy violates the act: Nationwide, most family leave complaints have been against companies that grant less than 12 weeks' medical leave, or none at all, according to a spokesman for the U.S. Department of Labor.
But Cooper and other nurses forced to be out more than 90 days because of pregnancy complications say the hospital is choosing the most austere interpretation of the Family and Medical Leave Act and using it to reduce staff and cut costs.
Before the law was enacted - and before health care reform uncertainty - sick employees routinely were given as much time off as deemed necessary by their doctors. The employees' jobs were waiting for them when they recovered.
"If they're using it as an excuse [to reduce medical leave], then it's a complete bastardization of the principle of the law," says Jerry Butterworth, an investigator for the Labor Department's Wage and Hour Division. "The FMLA was never intended to cause employers to cut back on a liberal policy; it was to make medical leave mandatory for those employers who never gave it to begin with.
"To use the FMLA as the scapegoat . . . that's like using the minimum-wage law to say the most you're ever going to pay your employees is $4.25."
Many hospital employees think it would be more fair to cut costs by laying off workers with the least seniority and the worst work records.
"Fifteen hundred people were laid off recently at the Duke University Medical Center," says a Community Hospital doctor who has worked with Cooper. "And I'd find that more palatable than what's happened to Sharla . . .
"If they need 10 percent fewer people, they should say that and then lay them off. At least people like Sharla, whose expertise exceeds a lot of the folks working here now, would still be with us."
The doctor requested that his name not be used in this story because of "the reign of fear" many Carilion Health System employees are working under, he says, partly stemming from the way Cooper's case was handled and partly because of industrywide concerns about health care reform.
"The bottom line in medicine everywhere is the budget," he adds. "We've gone from caring about people to caring about dollars."
Lucas Snipes, Carilion's senior vice president for personnel, said that the corporation used the Family and Medical Leave Act as a guideline for making its leave policy consistent.
Before the act's passage, Carilion's leave policy varied according to each person's situation, he says.
Snipes denied employees' assertions that the law is being used as a staff-reduction tool. Asked about allegations of low morale resulting from its application, he said, "We are concerned about that," adding that the new policy is being reviewed.
"We understood going in that there would be some people affected by it, but at the same time we looked at the other side . . . and asked, `How long can we keep a position open using overtime and stretching other staff thinner to do that?'
"It was about providing consistency. What we're doing is in line with what that whole guideline was prescribed for: to have a consistent national policy for family and medical leave."
Asked if employees complained before about Community's leave policy being inconsistent, Snipes said, "I really don't know."
It's been 11 weeks since Sharla and Tom Cooper's son, Mitchell, was born - happy, healthy and five weeks premature. Sharla Cooper, 31, spent the first six weeks of Mitchell's life caring for him and trying to get her old job back.
She says she made dozens of phone calls to nursing supervisors at the hospital. Hearing no response, she began to visit the hospital regularly to apply for her old job in person.
"After being told I'd have a chance at applying for my old job, I ended up being misinformed and jerked around," she says. Finally she applied for a teaching job at Radford University, where she was hired as a nursing instructor - earning $16,000 a year less than her nurse-practitioner salary.
Cooper's story began when she found out she was pregnant last October. Knowing her pregnancy would in all probability require a medical leave, she went to the hospital's human resources department to inquire about short-term disability.
"The secretary said, `The Family and Medical Leave Act affects you.' And I kept saying, `No, you don't understand, this is my story,' " explaining her history of miscarriages.
Cooper says the hospital announced its new leave policy with a fact sheet.
"Never was it clear, `You'll be terminated from your job in 90 days,' " she recalls. "There's a big difference between `We can't guarantee your job' and `You're terminated, you lose your job, your insurance, you're gone.' "
Cooper continued working, pulling swing shifts in the neonatal intensive care unit as well as commuting to Norfolk, where she was completing her master's degree in neonatal nursing.
"In the back of my mind, I still thought the pregnancy would be OK. And if it wasn't, I thought, maybe they won't fire me; I've never had a problem here. I've always had excellent reviews."
Jackie Martin, her supervisor, wrote on Cooper's most recent review that she "Significantly Exceeds Standards" in her job performance. In a 1990 review, Martin wrote, "Sharla is a great asset to the nursery. . . . Thanks for your hard work!"
"I felt like I could work there forever," Cooper says. "My husband and I have no interest in relocating."
Cooper can't find a similar job without moving because Community is the only area hospital with neonatal intensive care facilities. Her husband is a radiologic technologist at Roanoke Memorial Hospital.
Cooper began having contractions at 17 weeks gestation, and was put on a terbutaline pump to stop the labor. At 20 weeks, her cervix began to efface, advancing the labor and further jeopardizing her baby. Her doctor ordered a short hospitalization and then complete bed rest - and was so concerned about the effect gravity could have on her pregnancy that she drove to Cooper's house weekly to examine her.
"It was a real crossroads for me," Cooper says. "I know it sounds dramatic, but I really felt like it was my job or my baby."
For the next 12 weeks, she lay at home in bed - "worrying about losing my job, worrying about losing my baby, worrying about not being able to finish school, knowing that at any time I could lose the baby."
She and her husband had a 1-inch stack of ultrasound pictures. Knowing the fetus was a boy, they'd already named him Mitchell Garrison.
At 31 weeks, she was hospitalized again and put on magnesium sulfate, a stronger drug that stops contractions but has harsher side effects.
"I couldn't move, eat, see. I couldn't talk or think clearly; I couldn't even sit on a bedpan," she says.
Knowing the 90-day mark had passed the month before, Cooper kept wondering if she'd get a termination notice. Three days before her scheduled delivery, her boss, Jackie Martin, appeared at her bedside.
"She said, `I'm not here to fire you, but you will be receiving a letter in the mail,' " Cooper recalls.
Martin was not interviewed for this story because Community Hospital spokeswoman Page Pace said the hospital would allow only Snipes to comment on the case. A request to interview Community president Dorman Fawley was denied for the same reason.
"Being a nurse practitioner, I knew too much about premature babies," Cooper says. "I envisioned the baby being too small, sick, on a ventilator. And then to have my job fears confirmed, for her to come in like that and fire me from a job I loved so much - I felt like I'd been through hell. Every bit of my life had been tried."
A letter dated on her son's June 6 birthdate arrived a few days later. Written by Martin, it said, "Your present leave of absence has extended past this 90-day time frame, therefore job and benefit protection under the Carilion Leave of Absence Policy has expired."
"No one ever told me I was fired or terminated, but it was clear I'd been taken out of the computer," Cooper says. "They know the right words to use. Now the personnel people refer to it as being `separated from your employment,' but it's still the same.
"Carilion comes across as being so family-oriented," Cooper adds. "But they're not concerned with the families of their own employees. . . . Every person who's pregnant and working there now is praying to have a normal pregnancy - not just because they want a healthy baby, but because they're fearful for their jobs."
It is unclear how many people have been adversely affected by the hospital's interpretation of the Family and Medical Leave Act, but at least two other Community nurses say they were terminated at the 91-day mark while on doctor-ordered medical leave due to pregnancy complications.
Cynthia Langhorn had had one healthy, premature daughter and two miscarriages before becoming pregnant for the fourth time last year. Like Cooper, she was a hospital patient on the magnesium-sulfate drug when her boss fired her.
"She told me I could reapply for my position if it was still there, but since then I learned they're not going to fill my position because the census is down," says Langhorn, 29. She has since been hired elsewhere as a family-practice nurse - at a pay cut of 70 cents per hour.
"Carilion needs to make allowances for pregnant women who are fighting for the lives of their unborn children," Langhorn says. "I can understand if I fell and broke my back and wasn't able to go back to work, but I'm healthy now and willing and able to go back to work - preferably at my old job."
Langhorn was a licensed practical nurse at Community's OB/GYN Clinic, which treats most of the region's pregnant Medicaid patients.
"There are a lot of black teen moms who come to the clinic, and I was the only black nurse there. I loved working with the teens and their babies; I loved my job."
Amy Shibley, a former labor-and-delivery nurse with a six-year tenure at Community, also was fired during a medical leave ordered by her OB/GYN. Her job had been held after a complicated, but successful, first pregnancy in 1992.
But she was terminated seven months into her second pregnancy while at home on bed rest, she says. "My manager told me, `I hate to do this, but you no longer have a job. You've been separated, so you won't have on your record that you were fired; you're still in good standing with the hospital.' "
Like Langhorn and Cooper, Shibley was told she could reapply for her job - but her old job was gone by the time she was healthy enough to go back, she says. Unlike Langhorn and Cooper's husbands, who work full-time and can help pay for family insurance and other expenses, Shibley's husband is in college.
"I just got back from an interview," she said last week. "I can't find anything right now; Carilion has gobbled up everything around."
Shibley, 27, says that for the first time in her life she's been forced to apply for food vouchers, food stamps and Medicaid for her two children. She's also receiving $208 in weekly unemployment benefits - although "at first Carilion told the [Virginia Employment Commission] that I had quit. They tried not to pay my unemployment," she says.
"I kept thinking, maybe if I worked in a lawyer's office or something, maybe they wouldn't understand. But a hospital that's supposed to be Southwest Virginia's women and children's hospital? You would think they'd understand."
Cooper and the other nurses say they don't just blame Carilion Health System for the way they've been treated. They blame President Clinton and Congress for rushing the Family and Medical Leave Act into effect.
Employers using the law as a means to limit, rather than extend, medical leaves "would be an unanticipated consequence in my view," says Raymond Hilgert, a professor of management and industrial relations at Washington University who recently completed a study of the law.
But employers allowing more than 90 days do "open themselves up to claims of disparate treatment," Hilgert says. "Their very real concern is: As soon as you [allow extended leave] for one, what do you do for everybody else?"
Employers have to be careful not to discriminate by age, race or sex in granting extended leaves, he says.
"In most places, human nature seems to be, if it's a good employee, you'll do anything" to keep that person on.
While Carilion administrator Snipes concedes that Cooper and the other nurses have legitimate complaints, "My question is: How many other industries before [the law was passed] held jobs for any period of time? How many other companies were holding these positions before, and how did they do it?"
Sharla Cooper doesn't fault Carilion for asking those bottom-line budget questions, but she does fear that the budget - not quality health care - has become the corporation's No. 1 concern.
"When you try to stretch nurses too thin, patient care declines. It's just criminal to do that; it's a crisis for health care."
Doctors who work at Community are concerned by unfilled nurse-practitioner jobs such as Cooper's, one said. "These are critical positions that have been unfilled for months."
Why? "Nurse practitioners are paid more - that's the bottom line."
"The patients are still getting good care, but the morale of the caregivers is low across the board, and that concerns me," he added. "You'd like to go to work and hear, `You did a good job,' but here it's more like, `Do more with less and be happy you're still here.' "
Cooper says she doesn't want her old job back - she just wants Carilion to change its policy.
Her advice to other women employees in the region: Know your employer's policy before you get pregnant. If the policy doesn't detail the consequences of an extended medical leave, make your employer spell it out.
"Keep involved legally with what really is pro-family," she says. "The Family and Medical Leave Act has to be changed to truly help families and not hurt them. . . . And I think women especially are going to have to stand up against these kinds of injustices because women are more likely to take family and medical leave."
What's happened at Carilion, Cooper says, is an example of "a male administration against its predominantly female employees."
Employers should realize that employees who feel valued will be more productive, she says.
"When you treat employees unfairly, the company loses overall. And when you're talking about a hospital, I think the patients lose."
by CNB