Employers Can Help Employees…and Help Themselves When it Comes to Eldercare! — Part 4

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

Part 4: Model State Statutory Langauge

This post is our fourth post in this important five-part series regarding how employers can 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. As federal and state law are in-play, this post speaks to how the states craft their position and gives employers  critical insight to consider.

The patchwork of federal, state, and local laws presents a complicated legal environment for employers and employees alike. The lack of consistent policy leaves many working caregivers unprotected from FRD. It also leaves many managers and supervisors unaware of how eldercare affects their employees.

State policymakers should consider whether a single statewide law would simplify and clarify the legal environment for employers while fillingiStock_000014696872XSmall_PM gaps in legal protections for employees with family responsibilities. Because each state currently has its own statute prohibiting employment discrimination based on protected classifications—such as sex, race, national origin, religion, and disability—the most efficient means of addressing FRD (Family Responsibilities Discrimination) is to add family caregivers as a protected class to existing state law, rather than introducing a stand-alone statue. A stand-alone statue likely would sharply limit the scope of antidiscrimination protections offered as the result of the legislative process. An amended state statute addressing FRD would benefit employees by filling the gaps in legal protections, most notably by adding protections for employees responsible for the care of older adults. Such a state statute might well benefit employers, too.

Employers typically avoid legal risk by training their supervisors on the law with a series of clear dos and don’ts. Given the current complexities of FRD law, this is very difficult to accomplish. Indeed, some employment lawyers who defend employers have opined that the legal landscape surrounding FRD is so confusing that employers might be better off with a simple, straightforward state law clearly prohibiting discrimination against employees because of their family caregiver status.

Legislation to prohibit workplace discrimination against family caregivers would not give any group special rights. It would simply require employers to treat workers with caregiving responsibilities the same way they treat other employees. Such legislation would address the fact that employers sometimes impose unwarranted penalties on workers with caregiving responsibilities due to stereotypes that such employees are less competent or less committed to work.

Under an antidiscrimination law, employers would have to treat employees with family responsibilities the same as other employees. Thus, an employer who readily allows students’ work schedules to be shaped around their class schedules could not refuse to show similar flexibility for an employee caring for an older adult. Anti-discrimination law simply requires equal treatment.

Confusion often arises between statutes addressing FRD and statutes requiring family leaves. An important point is that equal employment law to protect family caregivers does not require employers to provide employees with family or medical leave. A simple, straightforward state statute would—

1. Add the term “family caregiver status” to the list of status characteristics upon which employers are prohibited from basing discriminatory employment decisions under state law;

2. Define the term “family caregiver” for the purposes of employment antidiscrimination protections as “a person who cares for a family member”;

3. Define “family member” as “a person who is related by blood, legal custody, or marriage, a domestic partner, or a person with whom the caregiver lives in a familial relationship”; and

4. Ensure that anti-retaliation provisions that protect discrimination complaints based on other protected classifications apply to protect family caregivers as well.

Next Post: Our final piece in this series, “Best Practices for Removing Barriers to Equal Employment Opportunity for Working Caregivers”

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

%d bloggers like this: