by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
August 24, 2016
With many employees living life as the “Sandwich Generation,” job protections for family caregivers are becoming ever more important. An August 18 blog post from the US Department of Labor highlights the issue in part by taking a brief look at paid leave programs in 3 states and job protection under the Family and Medical Leave Act.
Many employers don’t realize the extent of job protections for family caregivers. Here I will take you on a quick tour of these workplace rights. In October I will have the pleasure of presenting this topic in depth at the annual HRSouthwest conference in Ft. Worth. To my knowledge this will be the first presentation of its kind, addressing the many sources of protection and what employers need to do to ensure compliance. Here is a quick summary to whet your appetite!
Family and Medical Leave Act. This is no surprise to those of you familiar with the FMLA. This federal law provides up to 12 weeks of job protected leave of absence per leave year for an employee to care for a family member with a serious health condition. Several states have similar laws – including California, Colorado (limited to domestic and civil union partners), Connecticut, District of Columbia (OK, that’s not a state), Hawaii, Maine, Maryland, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, and Wisconsin. In addition, even more states have protected leaves of absence for pregnancy disability (a kind of family care, right?) and bonding. The FMLA and most state family leave statutes also prohibit retaliation against employees who seek to exercise these leave rights.
Americans with Disabilities Act. Did you know that the ADA protects employees who have family members (or other close individuals) with disabilities? The “association provision” of the ADA prohibits employment discrimination against a person because of his or her known relationship or association with a person with a known disability. This means that an employer is prohibited from making adverse employment decisions based on unfounded concerns about the known disability of a family member or anyone else with whom the applicant or employee has a relationship or association. For example, an employer cannot terminate an employee because her husband (or best friend or roommate or…) has been diagnosed with cancer and the employer is concerned the employee will miss time from work to care for her husband and take him to medical treatments.
Title VII of the Civil Rights Act of 1964. This statute is best known for its workplace protections against discrimination, harassment, and retaliation for members of protected classes (e.g., race, sex, religion, national origin). However, there can be circumstances where, because of an employee’s protected classification, he or she is discriminated against due to caregiver responsibilities. Here are some examples:
- Denying a woman with young children an employment opportunity that is available to men with young children.
- Denying a male caregiver leave to care for an infant under circumstances where such leave would be granted to a female caregiver.
- Reassigning a woman to less desirable projects based on the assumption that, as a new mother, she will be less committed to her job.
Paid Family Benefits/Leave Laws. A recent trend in workplace benefits is toward pay for workers who take time off to care for a family member or to bond with a new child. California, New Jersey, and Rhode Island each mandate a pay benefit during leaves of absence taken for these reasons. New York will join the field in 2018. And effective January 1, 2017, San Francisco will require employers to top off the California paid parental leave benefit to equal 100% of the worker’s base salary (subject to some limitations). Many of these laws provide paid leave benefits but not job protection during the leave; however, most employers treat the time off as job-protected and restore the employee to his/her position following the paid leave.
California Fair Employment and Housing Act. I’ve saved the best for last. It may be that, in California, an employer has a duty to provide an accommodation to an employee associated with an individual with a disability – not just refrain from discriminating against the employee because of the family member’s disability. The CA FEHA provides worker protections similar to the ADA (among many other things). One little-known FEHA provision was recently put to the test in Luis Castro-Ramirez v. Dependable Highway Express. In this case the California court of appeals ruled that an employee with a son who required dialysis on a scheduled basis was entitled to an accommodation under FEHA to meet his son’s dialysis needs. The ruling was based on the language of the statute which defined a physical disability to include an employee who is associated with a person who has, or is perceived to have, a physical disability. Examples include, as in this case, time off from work to provide required medical care or transportation to appointments.
More to come. Stay tuned here for more information as Matrix develops further information on protections for employees who are family member caregivers. Let me know if you have questions or ideas that you would like to have addressed. This is an important topic for a sizable portion of the US workforce. We want to help keep you on the cutting edge.
My topic at the HRSouthwest conference will be “Employers: Beware of Caregiver Protections!” Tuesday, 10/18/2016 1:30pm – 3:00pm. Please join me!
MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at [email protected].