Rising Caregiver Responsibilities Fuel Push for Extra Worker Protections

The increasing need for employees to care for an older relative or friend should prompt an expansion of federal legal protections against workplace discrimination, according to a recent report by the AARP Public Policy Institute.

In what the AARP report authors dub as the “new normal,” Protecting Family Caregivers from Employment Discrimination says discrimination in the workplace against workers with eldercare responsibilities is growing and highlights the limited legal protections for working caregivers.

Among U.S. workers, about 42 percent have provided unpaid eldercare in the past five years and just under half (49 percent) of the workforce expects to provide eldercare for a family member or friend in the coming five years.

One in five workers age 55 and older made up the labor force in 2009, and that number is projected to grow to nearly one in four workers by 2018, according to the Urban Institute in Fact Sheet on Retirement Policy. Almost all of the growth in the workplace between now and 2018 will be in the 55 and older age group, says the fact sheet.

‘Sandwich Generation’ Realities

The average family caregiver in the United States today is a 49-year-old woman who works outside the home and spends the equivalent of an additional half-time job (nearly 20 hours a week) providing unpaid care to her mother for nearly five years, per the Caregiving in the U.S. 2009 survey, co-published by the National Alliance for Caregiving and AARP.

Nearly seven in 10 family caregivers of adults age 50 and older report making accommodations at work, such as commonly arriving late, leaving early or taking time off during the day to provide care. Seventeen percent take a leave of absence, while 9 percent reduce work hours from full time to part time. An estimated 10 percent of family caregivers quit their jobs to give care or choose early retirement.

As eldercare becomes more common and necessary, workers in the “sandwich generation” — those between the ages of 30 and 60 — are more likely to face work responsibilities alongside both childcare and eldercare responsibilities. These statistics and changing workplace demographics create the potential for greater discrimination against workers with caregiving responsibilities, the AARP study suggests.

FMLA Compliance

Under the Family and Medical Leave Act, employers have specific obligations toward employees who are seeking leave to care for a spouse, child or parent with a serious health condition. FMLA does not currently offer job-protected leave for care of other older relatives, such as grandparents, siblings or friends. (See ¶130 of Thompson’s Family and Medical Leave Handbook for details of whom the law covers.)

Even if a parent has a regular caregiver, FMLA requires covered employers to grant eligible employees up to a total of 12 workweeks of unpaid leave during any 12-month period to care for a parent with a serious health condition.

FMLA also applies to leave taken when the serious health condition of the parent is intermittent or the employee is only needed for such care intermittently, such as when other care is typically available or care responsibilities are shared with another member of the family or a third party.

But while intermittent FMLA leave for planned medical treatment of an aging parent is permissible, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation.

Stay Out of Court

To prevent lawsuits from being filed by working caregivers of older adults, employers would be wise to consider adopting a model policy for preventing family responsibilities discrimination. This policy, if spelled out in an employee handbook, would send a clear message that employees with family responsibilities, including eldercare, are judged on the basis of their job performance rather than on outdated assumptions that they are not committed to their jobs.

Employers should avoid:

  • penalizing family caregivers for requesting or taking job-protected leave to which they are entitled;
  • stereotyping caregivers as less competent and committed workers;
  • sending the message that caring for parents is not an adult child’s responsibility;
  • treating employees who care for older relatives differently than others; and
  • not offering or removing the option of an alternate work schedule designed to offer workplace flexibility for all employees including working caregivers.

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