FAQs ABOUT EMPLOYEES WHO CARE FOR AN ELDERLY SPOUSE OR PARENT: WHAT PROTECTIONS DOES THE LAW PROVIDE?

by Employment Law Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
Norwood Corporate Center
1500 Providence Highway, Suite 33
Norwood, MA 02062
(781) 551-0800
Llockard@leslielockard.com
www.leslielockard.com

Statistics reflect that almost sixty per cent of the people who provide care to an elderly person work outside the home, the majority of them being employed in full time positions. Twenty per cent of US households are responsible to some degree for the care of elderly relatives, with women being primarily the ones who carry out these responsibilities. These trends are expected to increase as the Baby Boom generation ages and as advances in medical technology allow us to live longer. The law fortunately provides some protections to those who provide care to the elderly. The primary protective law is the federal Family and Medical Leave Act.

THE FAMILY AND MEDICAL LEAVE ACT

The Family and Medical Leave Act (FMLA) permits eligible employees to take up to 12 weeks of job protected leave per year for the purpose of caring for a parent or spouse (or child) who has a serious health condition. The FMLA was one of the first pieces of legislation signed into law by President Clinton in 1993. One of the law’s main proponents was Vice President Al Gore, who had gotten to know a number of parents at the hospital where he and his wife were caring for their son after he had been seriously injured in a car accident. Vice President Gore was particularly struck by a mother and father who were both fired while talking time off from work to care for their hospitalized child. Mr. Gore felt that it was wrong to force people to choose between the jobs they need for their livelihood and being good parents to an ill or injured child.

The FMLA applies to most businesses which employ 50 or more employees at the work site of the employee seeking leave, or within 75 miles of that work site. To be eligible for FMLA leave, the employee must have been employed by the employer for at least 12 months (which need not be consecutive months), and must have worked for the employer at least 1250 hours during the 12 month period immediately before the leave begins. One purpose for which FMLA leave may be taken is to care for a spouse or parent who has a “serious health condition”. The parent must be the employee’s own parent and not his or her parent-in-law. There are detailed regulations which define what a “serious health condition” is. In essence, a “serious health condition” is an illness, injury or condition that involves inpatient care or continuing treatment by a healthcare provider. Generally, unless complications arise, colds, flu, earaches, upset stomachs, minor ulcers, headaches other than migraines, routine dental or orthodontia problems and periodontal disease do not constitute serious health conditions.

An employee must provide the employer at least 30 days advance notice before FMLA leave is to begin if the need for the leave is foreseeable based on planned medical treatment for the spouse or parent’s serious health condition. If 30 days notice is not practicable, such as when emergency care is needed, notice must be given “as soon as practicable”. An employer may require that the employee provide a certification from the parent or spouse’s health care provider, certifying that the spouse or parent has a “serious health condition” and that the employee is “needed to care” for the spouse or parent. This certification usually should be provided within 15 days of the employer’s request for it.

The certification that an employee is “needed to care for” a spouse or parent encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the spouse or parent is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor. The term also includes providing psychological comfort and reassurance to a spouse or parent with a serious health condition who is receiving inpatient or home care. In addition, the term includes situations where the employee may be needed to fill in for others who are caring for the family member, or to make arrangements for changes in care, such as transfer to a nursing home.

FMLA leave to care for a spouse or parent with a serious health condition may be taken on an intermittent basis, in increments as short as one hour, if there is a medical need for the leave (as distinguished from voluntary treatments and procedures) and the medical need can be best accommodated through an intermittent schedule. Intermittent leave includes not only situations where the parent or spouse’s condition is intermittent, but also where the employee is needed only intermittently—for example, where other care is normally available, or care responsibilities are shared with other people. Employees needing intermittent FMLA leave must try to schedule their leave so as not to disrupt the employer's operations. In addition, during the period of intermittent leave, the employer may assign the employee to an alternative position with equivalent pay and benefits that better accommodates the employee's intermittent schedule.

Generally, FMLA leave is unpaid. However, the employee may elect, or the employer may require the employee, to use any accrued unused vacation or personal time during FMLA leave taken to care for a spouse or parent. If an employer offers sick time or family leave benefits to its employees, accrued unused time available under these policies may be used during FMLA leave to care for a spouse or parent only if the coverage the employer provides allows for benefits to be used for these purposes.

During FMLA leave, the employer must maintain the employee's health insurance coverage on the same terms that it would have if the employee remained actively employed during the period of leave. At the end of FMLA leave, the employer generally must return the employee to the position (s)he held when leave began, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. The employee’s employment benefits must also be resumed at the same levels as when leave began, subject to any generally applicable changes in benefit levels that may have taken place during the period of leav. The employer cannot retaliate against the employee for taking FMLA leave, nor can the use of FMLA leave be counted against the employee in any way, such as in applying attendance policies. More information about the FMLA can be found at the US Dept. of Labor website, www.dol.gov.

THE FEDERAL DISABILITY DISCRIMINATION STATUTE (ADA) PROTECTS EMPLOYEES FROM DISCRIMINATION BECAUSE OF THEIR RELATIONSHIP OR ASSOCIATION WITH A DISABLED PERSON

The federal Americans With Disabilities Act (ADA) applies to employers of 15 or more people, and prohibits employers from discriminating against qualified disabled people. The word “disability” is broadly defined. A person is considered disabled if she/he has any physical or mental impairment which substantially limits him/her in one or more major life activities, such as speaking, hearing, walking, breathing, reproducing or concentrating. A broad range of conditions may constitute protected disabilities, including cancer, blindness, a stroke, heart conditions, MS, Parkinson’s disease and Alzheimers. The ADA prohibits employers from discriminating in any way against an employee because of his/her relationship or association with a disabled person. Among other things, the ADA would prohibit an employer from:

• Inquiring whether an employment applicant has a relationship with a disabled person or deciding nor to hire the person solely because (s)he does have such a relationship

• Deciding not to promote or hire such a person based on assumptions that the person will not be able to do, or would not want to take, a job because of his/her relationship with a disabled person

• Firing a person because he or she has assumed a relationship with a disabled person, for example, if an employee’s husband is diagnosed with MS.

THE 2007 EEOC GUIDANCE ON UNLAWFUL DISPARATE TREATMENT OF WORKERS WITH CAREGIVING RESPONSIBILITIES

In May of 2007, the EEOC issued an “Enforcement Guidance on Unlawful Disparate Treatment of Workers With Caregiving Responsibilities. A Guidance does not have the same force of law as a statute or regulations, but it illustrates how the EEOC will interpret and apply the law in cases brought before it. Courts will also often give deference to such guidelines in interpreting the law. Our state Commission Against Discrimination will likely interpret our state discrimination laws similarly to what is described in the federal Guidance.

Employees with caregiving responsibilities are not a directly protected group under state or federal discrimination laws. Thus, the Guidelines state, an employer does not violate the federal discrimination law, Title VII, if it treats both working mothers and fathers in a similarly unfavorable (or favorable) manner as compared to childless workers. However, discrimination or harassment of female or male caregivers may constitute a violation of the laws against sex and disability discrimination.

Unlawful Sex Discrimination Against Employees with Caregiving Responsibilities

Some of the factors the EEOC stated that they consider in determining whether an employer has treated caregivers adversely, in violation of federal sex discrimination requirements, are the following:

• Whether the employer asked female applicants, but not male applicants, whether they have caregiving responsibilities.

• Whether company decision makers or other officials made comments or took actions that reflect stereotypical or derogatory attitudes about female caregivers. Examples: Assuming that a female caregiver will be a less dependable worker, will not be as committed to her work or should not be offered--or will not accept--jobs that involve long hours or travel, or a promotion that involves relocation to another city.

• Whether, despite the absence of a decline in work performance, the employer began subjecting women to less favorable treatment after they assumed caregiving responsibilities. Example: Assuming that a female caregiver will not have her mind fully on her work or will be less dependable or available, and therefore deciding not to give her a promotion or allow her to participate in an executive training program.

• Whether female workers without caregiving responsibilities received more favorable treatment than female caregivers based upon stereotyped assumptions about female caregivers;

• Whether the employer steered or assigned women with caregiving responsibilities to less prestigious or lower-paid positions, even for “benevolent” reasons; Example: transferring a caregiver of a husband newly diagnosed with terminal cancer (unless she requests such a transfer) to less demanding or challenging work to protect her from exhaustion or stress, or to give her more time to be with her husband;

• Whether male workers with caregiving responsibilities received more favorable treatment than female workers;

• Whether the employer denied caregiving benefits to male employees that it grants to female employees because of stereotypical assumptions that women are or should be the caregivers in the family. Examples: An employer offers up to one year of unpaid leave for personal reasons, including to care for an ill or injured family member, but the employer refuses to allow a male worker to take leave to care for his terminally ill father.

• Whether stereotypical assumptions begin coloring an employer’s subjective performance assessments of female employees after they assume caregiving responsibilities. In this regard, the Guidelines state that EEOC investigators should look for evidence of 1) changes in an employer’s assessment of a worker’s performance that are not linked to changes in the worker’s actual performance and that arise after the worker assumes caregiving responsibilities; 2) subjective assessments that are not supported by specific objective criteria; and 3) changes in assignments or duties that are not readily explained by nondiscriminatory reasons.

Discrimination on the Basis of Caregiving Responsibilities for a Disabled Person

The Guidelines state that an employer cannot lawfully refuse to hire, or make an adverse employment decision about, a worker based on stereotypical assumptions about the worker’s ability to satisfactorily perform his job duties because of his/her need to care for a disabled family member. For example, an employer could not refuse to hire a woman whose husband has cancer on the assumption that she will need to be frequently absent. Similarly, an employer could not deny a man whose father has MS a promotion on the assumption that he will be distracted and often absent from work.

Hostile Environment Harassment

According to the Guidelines, employers cannot subject employees with caregiving responsibilities to harassment on that basis. For example, employees should not be subjected to such comments as “Now that your husband has cancer, maybe you should think about whether you still want to be a supervisor”, or “Now that your husband is sick, I suppose you are going to want the rest of us to take up the slack for you”. Employers also cannot harass employees on the basis of caring for a disabled person. For example, the employer cannot subject such an employee to different rules from other employees, such as requiring him to give one week’s notice of an absence; removing the employee from team projects “considering your wife’s illness”; and yelling at the employee in front of coworkers about his expected inability to meet unrealistic project deadlines.

The full text of these Guidelines is available at www.EEOC.gov.

THE MASSACHUSETTS SMALL NECESSITIES LEAVE ACT

The Small Necessities Act (SNLA) is a Massachusetts statute which applies to most employers “who employ 50 or more employees”. The statute requires employers to grant eligible employees a total of 24 hours of unpaid leave per year for several purposes which aren’t covered by the federal Family and Medical Leave Act (FMLA): One of the covered purposes is to accompany the employee’s elderly relative (at least 60 years old) to routine medical or dental appointments, or to appointments for other professional services relating to the elderly relative’s care, such as interviewing at nursing homes.

The SNLA adopts the eligibility criteria of the federal FMLA. Thus, to be eligible for Small Necessities leave, an employee must have worked for the employer at least 12 months, and must have worked at least 1250 hours for that employer during the last year. If the need for Small Necessities leave is foreseeable, the employee must give the employer not less than seven days’ notice before beginning leave. If the need for the leave is not foreseeable, the employee must give “such notice as is practicable”. Employees who take Small Necessities leave are still entitled to their full twelve weeks of annual FMLA leave.

As under the FMLA, an eligible employee may choose, or the employer may require the employee, to substitute for unpaid Small Necessities Act leave any accrued paid vacation time, personal leave, or medical or sick leave. Employees may take Small Necessities leave intermittently or on a reduced leave schedule, in increments as small as one hour, as is permitted under the FMLA. Employers may generally require that employees give notice of the need for Small Necessities leave in writing but if not feasible, leave requests may be given orally - e.g., if a parent needs to be taken for a medical appointment for condition that developed overnight.

Massachusetts Attorney General’s office has issued Guidelines which provide more information about the Small Necessities Leave Act. These Guidelines can be found on the Massachusetts Attorney General’s website, www.ago.state.ma.us.

PROTECTIONS BEYOND WHAT THE LAW CURRENTLY REQUIRES

Increasingly, employers are offering more benefits than the law now requires to employees who need to care for an elderly relative. For example, some employers provide longer leaves than 12 weeks, telecommuting, flexible scheduling and referrals to elder care resources such as adult day care and home health services. This will probably become more common as employers seek to retain their increasing numbers of employees who care for elderly relatives.

PENDING LEGISLATION WHICH WOULD ENHANCE CAREGIVER LEAVE RIGHTS

There is proposed legislation pending in the Massachusetts legislature which would enhance caregiver leave rights:

1. An Act Supporting Strong Families By Providing Paid Family Leave, Increasing Tax Deductions, And Establishing A Work Family Council. Among other things, this bill would establish a Strong Families Trust Fund, to which would be deposited premiums which would be collected from employees by means of deductions from their paychecks. The money in the fund would be used to provide paid leave to employees who take leave for any of the purposes for which FMLA leave may be taken. Eligible employees would receive a stipend in the amount of 80% of their wages or salary, up to a maximum amount, which would be $750 per week in 2008 and 2009. The statute would also permit employees of employers of 6 or more employees (not 50, as under the FMLA) to take job protected leave for purposes for which FMLA leave can be taken, if the employee has been employed by the employer for at least 12 months, and has worked 1250 hours for the employer during the past 12 month period. Employees would be eligible for the stipend if they have been paid wages of not less than $3000 from which fund deductions have been taken in any 12 month period, and who, at the time leave begins, have been employed for at least 12 weeks by the employer from whom leave is requested and have provided at least 216 hours of service.

2. An Act Providing Unpaid Family And Medical Leave This bill would extend FMLA leave to employees of employers who employ 35 or more employees, rather than the 50 employees required for the FMLA to be applicable.

3. An Act Relative to Paid Sick Days This bill would require all Massachusetts employers to provide 7 paid sick days per year to be used when the employee is ill/injured, or to care for an ill/injured child, parent or spouse, or to attend routine medical appointments for the employee, the employee’s child, or a parent or spouse in need of care. A pro rata amount of paid sick leave would be available to employees who work 30 hours per week or less.

THIS MEMORANDUM IS FOR GENERAL INFORMATION ONLY, AND IS NOT INTENDED TO PROVIDE LEGAL ADVICE AS TO ANY PARTICULAR SITUATION. EMPLOYMENT LAWS ARE CONSTANTLY SUBJECT TO CHANGE. QUESTIONS ABOUT PARTICULAR SITUATIONS SHOULD BE DIRECTED TO A KNOWLEDGEABLE EMPLOYMENT ATTORNEY.

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