Employers Can Help Employees…and Help Themselves When it Comes to Eldercare! — Part 3

by Kevin K. Johnson, Certified Senior Advisor (CSA)®

Part 3: Protections That Exist for Employees Under Federal Employment Laws

This post is our third of a five-part series regarding how employers can avoid not only lost productivity costs, but also avoid employment discrimination issues that could arise from employees that are family caregivers. In our previous post we shaped the issue and presented the framework for why this is a policy matter important to employers. Let’s talk about the status of existing federal law. With this, you may begin to gain a view as to where we may be headed with federal policy.

Federal equal opportunity policies explicitly prohibit employers from discriminating against employees on the basis of sex, race, religion, iStock_000014696872XSmall_PMdisability, national origin, and age. Federal law does not explicitly prohibit discrimination based on caregiver status. Rather, FRD claims are actionable only when discrimination against family caregivers qualifies as discrimination under other federal statutes.

A patchwork of federal protections provide limited coverage to family caregivers who experience FRD. Yet federal law often fails to protect employees who need or have taken leave, because only about half of the workforce is covered by the FMLA. In addition, federal law completely fails those who need accommodation other than leave, such as reduced or flexible schedules, or even minor workplace adjustments to meet the needs of workers in their caregiving role such as the need to communicate during the workday with a parent’s health care provider.

What protections do exist for family caregivers under federal law come from the FMLA, the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Employee Retirement Income Security Act of 1974 (ERISA). Caregivers who can show that they were treated worse on the basis of their sex or their age are also protected by Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 (ADEA).

Recognizing the growing scope of FRD, in 2007 the U.S. Equal Employment Opportunity Commission (EEOC) issued enforcement guidance on the topic of caregiver discrimination, including pregnancy discrimination, discrimination against parents caring for their children, and discrimination against workers who care for aging parents or ill or disabled spouse or family members. In 2009, the EEOC followed up with a second report on this issue. The reports provided examples of best practices for employers to decrease the likelihood of employment discrimination complaints. In February 2012, the EEOC held a meeting to examine recent trends in discrimination against pregnant workers and workers with caregiving responsibilities.

Despite these laws and federal guidance—and despite the rapid growth in the number of FRD cases over the past two decades—federal legal protections for employees caring for older adults are severely limited. Because of a lack of legal protections for working families, fewer than one-tenth (about 8 percent) of the cases in WorkLife Law’s case law database of more than 3,000 FRD cases involve adults caring for older relatives.

Common situations in which employees would have no protection under federal law include the following examples:

  •  A phone company customer representative lost her job when she failed to meet her sales quota due to the stress of caring for her mother, who had died by the time of her union hearing.

  •  A factory worker was disciplined for failing to show up for overtime work on a Saturday because he had no one to stay with his wife, who had cancer and was severely depressed.

  •  An employer denied sick leave for a surgical supply coordinator who requested leave to travel out-of-state to care for her mother during and after a surgery.

Federal Policy Considerations

Given the limited protections in current federal law, a starting point in improving federal policy to protect family caregivers from employment discrimination would be for the EEOC to ensure enforcement of its 2007 guidance. The EEOC and the Department of Labor could also conduct a campaign to raise awareness about caregiver discrimination in the workplace.

Other federal policy considerations should include:

  • Improving the FMLA, such as by expanding its scope to cover all primary caregivers, regardless of family relationship, and to cover workers in smaller businesses

  •  Providing paid leave to permit working caregivers to care for an ill child, spouse, or parent or to accompany family members to routine medical appointments

  •  Requiring employers to provide workers with a reasonable number of paid sick days to care for themselves or a loved one

Another way to address FRD might be to enact legislation to promote a federal “right to request” law. Such laws, already in place in the United Kingdom, New Zealand, and Australia, require employers to set up a process to negotiate workplace flexibility and allow employers to turn down flexible work arrangement requests only for certain business reasons.

Again, special thanks to AARP Public Policy Institute for outstanding research.

Next Post — Modeling State Statutory Langauge

Reference: AARP Public Policy Institute

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