If you are a primary or even secondary caregiver for a parent or other older relative, you no doubt are dealing with the issues involved in balancing your caregiver role with the other areas of your life, especially if you are also employed full-time. Given today’s economic climate and the difficult job market, it can be extremely stressful to be afraid of losing your job when your duties as a caregiver interfere with your responsibilities as an employee. So it is important to be aware that there are laws that may protect your job while you care for your loved ones.
“Family responsibility discrimination” (FRD), while not a specific law, has been recognized under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) to address caregiver responsibilities. The FMLA guarantees leave to workers for newborns and newly adopted children, but it also covers care for relatives with a serious health condition including a parent. An employer must protect the job of someone on FMLA leave.
Similarly, the ADA‘s “association provision” prohibits an employer from taking an adverse employment action or otherwise discriminating against an employee because of his or her relationship with a disabled person. The Equal Employment Opportunity Commission (EEOC) has written guidance on the application of FRD which warns employers about discriminating against a caregiver. And, to make it clear that in this context, caregivers are not just women – Title VII of the Civil Rights Act of 1964 forbids gender stereotyping.
The downside of this positive news for the caregiver is that some of these laws do not apply to all employers. For example, FMLA applies only to employers with 50 or more employees. And an employee requesting leave under FMLA must have worked for that employer for at least one year and have worked a minimum of1250 hours in that year. And employers do not have to have special exceptions for a caregiver requesting leave. They must treat all employees equally and, of course, comply with these laws as far as they do reach.
But more good news is that states are supplementing the federal laws with their own efforts to provide caregiver protection from employment discrimination. Minnesota recently amended its law providing employees with sick leave to care for a child. The new law provides that an employee may take sick leave to care for an adult child, spouse, sibling, parent, grandparent or stepparent due to serious illness or injury. The law does allow the employer to limit these benefits but not to less than 160 hours within twelve months. And, sick leave taken to care for a child is not included in those 160 hours.
The ability of a caregiver to make use of these laws to protect his or her job while taking the time necessary to care for a loved one can be the difference between having the ability to fulfill family responsibilities and dealing with the stress of worrying about job security. An attorney experienced in elder law and the application of these laws to caregiver issues can help guide you to take full advantage of these benefits.