EDITOR’S NOTE: The following article was first published on HelpingYouCare™ on September 5, 2011. It remains relevant this Labor Day, and with some added links, we re-print it below:
Recent reports have found that low-wage employees, in particular, are suffering discrimination on the job because of their family caregiving duties.
These reports come at a time of high unemployment, when many employees fear for their jobs. At the same time, a recent national employee survey ranked the need for flexibility or leave time to provide eldercare as at the top of employees’ concerns.
In this context, this Labor Day, many family caregivers who are also trying to hold a job are quietly questioning their legal rights in the workplace.
Under the U.S. Family and Medical Leave Act of 1993, as amended (FMLA), a family caregiver for an ill/ disabled family member may be entitled to job-protected unpaid leave from your work (with health insurance benefits retained) for up to 12 weeks (26 weeks in certain military situations) in a 12-month period.
In addition, employees who are acting as family caregivers are generally entitled to be treated equally to other caregivers of the opposite gender or of a different race or age and, like other employees, not to be discriminated against by their employers on the basis of gender, race, or age, pursuant to Title VII of the U.S. Civil Rights Act of 1964, as interpreted by regulations of the U.S. Equal Employment Opportunity Commission (EEOC). In addition, caregivers are entitled not to suffer discrimination in the workplace based on association with an individual with a disability, pursuant to certain provisions of the Americans with Disabilities Act of 1990 (ADA).
Family and Medical Leave Act (FMLA)
The U.S. Family and Medical Leave Act of 1993, as amended (FMLA), entitles eligible employees to take up to 12 workweeks (26 weeks in certain military situations) of unpaid, job-protected leave in a 12-month period for specified family and medical reasons.
The U.S. Department of Labor has issued a Fact Sheet that explains the basic provisions of the FMLA.
Employers Subject to FMLA. You may be eligible for the benefits of FMLA if your employer is a public agency, including state, local and federal employers, local education agency (schools), or private-sector employer that employed 50 or more employees in 20 or more workweeks in this calendar year or in last calendar year. This includes joint employers and successors of covered employers.
Eligible Employees. To be eligible for FMLA benefits, an employee must:
- work for an employer that is subject to FMLA (see above);
- have worked for that employer for a total of 12 months (which need not be consecutive months, but work prior to a break in service of more than 7 years would not be counted unless the break was caused by National Guard or military reserve duty or during the break you had a written agreement of your employer to re-hire you);
- have worked at least 1,250 hours over the previous 12 months; and
- work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.
When Are Eligible Employees Entitled to FMLA Leave. An employer subject to FMLA must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:
- for the birth and care of a newborn child of the employee;
- for placement with the employee of a son or daughter for adoption or foster care;
- to care for a spouse, son, daughter, or parent with a “serious health condition”;
- to take medical leave when the employee is unable to work because of a “serious health condition”; or
- for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation.
The bolded provisions above are the ones most likely to apply to you as a family caregiver.
According to the Labor Department, the term “serious health condition”, as used in these provisions, means “an illness, injury, impairment, or physical or mental condition that involves either:
- Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, including any period of incapacity (i.e., inability to work, attend school, or perform other regular daily activities) or subsequent treatment in connection with such inpatient care; or
- Continuing treatment by a health care provider, which includes:
(1) A period of incapacity lasting more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also includes:
- treatment two or more times by or under the supervision of a health care provider (i.e., in-person visits, the first within 7 days and both within 30 days of the first day of incapacity); or
- one treatment by a health care provider (i.e., an in-person visit within 7 days of the first day of incapacity) with a continuing regimen of treatment (e.g., prescription medication, physical therapy); or
(2) Any period of incapacity related to pregnancy or for prenatal care. A visit to the health care provider is not necessary for each absence; or
(3) Any period of incapacity or treatment for a chronic serious health condition which continues over an extended period of time, requires periodic visits (at least twice a year) to a health care provider, and may involve occasional episodes of incapacity. A visit to a health care provider is not necessary for each absence; or
(4) A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective. Only supervision by a health care provider is required, rather than active treatment; or
(5) Any absences to receive multiple treatments for restorative surgery or for a condition that would likely result in a period of incapacity of more than three days if not treated.
As illustrated by the bolded provisions above, a parent’s diagnosed dementia which incapacitates the parent, requiring your constant supervision and assistance to your parent with the activities of daily living, as prescribed by a physician and conducted under a health care plan prescribed and supervised by a physician, may be a qualifying “serious health condition”, for which you may be entitled to 12 weeks of unpaid leave under FMLA if your employer is subject to FMLA and you are an eligible employee under the tests listed above.
You should consult a qualified employment law attorney to determine your rights under FMLA in your particular circumstances.
If your family member serves in the military, you should know that FMLA also entitles eligible employees to take such job-protected leave for any “qualifying exigency” arising out of the fact that a covered military member is on active duty, or has been notified of an impending call or order to active duty, in support of a contingency operation. The FMLA allows eligible employees to take up to 26 workweeks of job-protected leave in a single 12-month period to care for a covered service member with a serious injury or illness.
Further information on the applicability of FMLA for care of a service member is provided in another Fact Sheet issued by the Labor Department.
How Much Unpaid Leave. As referenced above, an employer subject to FMLA must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the above reasons.
To care for a covered service member with a serious injury or illness, the FMLA allows eligible employees to take up to 26 workweeks of job-protected leave in a single 12-month period.
Spouses working for the same employer may be limited to a combined total of 12 weeks of FMLA leave (or 26 weeks to care for an injured service member) within any single 12-month period.
Under some circumstances, employees may take FMLA leave intermittently – taking leave in separate blocks of time for a single qualifying reason – or on a reduced work schedule – reducing the employee’s usual weekly or daily work schedule.
Under certain conditions, employees or employers may choose to “substitute” (run concurrently) accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy.
Your Right to Continued Health Benefits. If you are entitled to FMLA leave, you are entitled to a continuation of your group health insurance coverage from your employer during your leave, on the same terms as if you had continued to work during that period. You may be required to continue to pay your share of the health insurance premiums while on leave. If you do not return to work after your FMLA leave, in some instances, the employer may be entitled to recover from you the premiums it paid to maintain your group health coverage while you were on FMLA leave.
Job-Protection While on Leave. If you are entitled to FMLA leave, you are entitled to retain your original job or an equivalent job, and to return after your leave to your original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.
As explained by the Department of Labor:
After FMLA leave, you of course have no greater right to restoration or to other benefits and conditions of employment than if you had been continuously employed.
Notice Requirements. If you seek to take FMLA leave, you are required to provide notice to your employer 30 days in advance “when the need is foreseeable and such notice is practicable.” If the need for the leave is not foreseeable 30 days in advance, then you must provide notice to your employer “as soon as practicable under the facts and circumstances of the particular case.” Except in unusual circumstances, you must follow your employer’s usual and customary notice and procedural requirements for requesting leave.
Your notice must provide sufficient information for your employer reasonably to determine whether the FMLA may apply to your leave request.
If your employer is subject to FMLA (see above), the employer is required to post notice in the workplace about employees’ FMLA rights. If you request FMLA leave, the employer is required to respond promptly and notify you of your eligibility and rights and responsibilities under FMLA.
For more information about FMLA, see the U.S. Department of Labor’s Fact Sheet #28: The Family and Medical Leave Act of 1993. You should consult an employment law attorney for advice on your FMLA rights in your particular situation.
Rights of Caregivers Not to Suffer Discrimination in the Workplace
As a caregiver, you also are entitled to be treated by your employer equally to other caregivers of the opposite gender or of a different race, and not to suffer workplace discrimination based on gender or race, pursuant to Title VII of the U.S. Civil Rights Act of 1964, as interpreted by regulations of the U.S. Equal Employment Opportunity Commission (EEOC).
Title VII of the U.S. Civil Rights Act of 1964, as amended, and as interpreted by the EEOC, broadly speaking entitles U.S. employees not to suffer discrimination in the workplace based on gender, race, age, or other protected status. Being a caregiver by itself is not a protected status under these laws. However, as a caregiver or due to your caregiving duties, you cannot be treated unequally to other employees on the basis of your race, gender or age.
As stated in Guidelines issued by the EEOC, “Although the federal EEO laws do not prohibit discrimination against caregivers per se, there are circumstances in which discrimination against caregivers might constitute unlawful disparate treatment.”
In addition, under the Americans with Disabilities Act of 1990 (ADA), you are entitled not to suffer discrimination in the workplace based on your association with an individual with a disability.
For detailed information on your rights against workplace discrimination as a caregiver, see the ENFORCEMENT GUIDANCE: UNLAWFUL DISPARATE TREATMENT OF WORKERS WITH CAREGIVING RESPONSIBILITIES, issued by the U.S. EEOC under and interpreting Title VII of the U.S. Civil Rights Act of 1964, as amended, as well as the applicable provisions of the Americans with Disabilities Act of 1990 (ADA).
As explained by the EEOC, “This document is not intended to create a new protected category but rather to illustrate circumstances in which stereotyping or other forms of disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability.”
The EEOC also points out that “An employer may also have specific obligations towards caregivers under other federal statutes, such as the Family and Medical Leave Act, or under state or local laws.”
If you believe you are being discriminated against by your employer on the basis of your gender, race, age, or association with a person with disabilities, you should immediately consult with a qualified employment lawyer with experience in these areas.
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Other Legal Issues — such as Patient Rights, Privacy Rights, Hiring a Private Duty Aide or Attendant, and Legal Issued Relating to Senior Housing & Care Facilities.
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