Eldercare litigation: The new fault line
Employee lawsuits claiming discrimination due to their family obligations are piling up.
By Sheryl Smolkin
As the number of employees that care for sick or aging parents increases, so do their claims of employer discrimination. A 2016 Family Responsibilities Discrimination Litigation Update from the University of California Hastings College of the Law documents a 650% jump in litigation involving eldercare during the previous decade.
There is no one overarching federal law that protects employees with eldercare responsibilities. Under the Family and Medical Leave Act of 1993, however, an employee who has worked for a government employer or a private employer with more than 50 employees for at least 12 months, may take up to 12 unpaid weeks of leave to care for a parent with has a serious health condition.
In certain cases, FMLA leave can be taken intermittently and upon return the employee must be restored to his or her original job, or to an equivalent job with equivalent pay and benefits. Employers are also required to continue group health insurance for employees on FMLA leave under the same terms and conditions as when they were actively at work.
Cynthia Thomas Calvert, the attorney who authored the UC Hastings report, estimates that the FMLA covers slightly more than half of the U.S. workforce. And while there is no a single federal statute that protects employees from family responsibilities discrimination (FRD), she notes that there are almost 100 state and municipal jurisdictions that have enacted legislation that expressly prohibit employment discrimination based on FRD or family status.
But she concedes that employees experiencing eldercare discrimination generally have fewer legal options than employees facing other types of FRD.
Since the Americans with Disabilities Act was amended in 2008, an increasing number of claims involving eldercare have alleged violations of the ADA’s prohibition barring discrimination against employees who associate with disabled individuals. With the amendment in place, “Temporary conditions can be considered disabilities if they are sufficiently severe,” Calvert says. “Previously if your mother fell and broke her hip, that would be considered temporary and did not qualify as a disability under the ADA.”
The protection afforded by the statute is flimsy, however, since employers are not required to give employees any special accommodation due to their responsibilities for disabled relatives. As a result, most claims involving eldercare are brought under the FMLA or a comparable state law. For example:
• Some claims allege interference with statutory rights, such as denying an employee leave, discouraging leave or failing to reinstate an employee to her original position, once the leave is over.
• Others concern retaliation for having taken a leave, including negative evaluations, harassment, demotion and termination.
• Employees have also brought claims of emotional distress, wrongful discharge, breach of contract, defamation and negligence.
“Even though the FMLA and the ADA don’t allow for a lot of damages, additional claims for emotional distress, where damages are not capped, can really inflate the awards,” explains Calvert.
Most civil cases are settled in confidence, making it often difficult to track the amounts of the settlements., In 2002, however, a jury awarded $11.65 million to a 26-year-old hospital maintenance worker who was fired while caring for both his father, who had Alzheimer’s, and his mother, who suffered from congestive heart problems and severe diabetes. The case was later settled on appeal.
Implications for employers
Even when employees do not go to court and win big awards, poor treatment of workers who need time off to care for sick relatives can backfire on employers.
“Employers should fear workplace disruption. If you have a caregiver who is being poorly treated by a supervisor, everyone knows about it,” Calvert warns. “They could be thinking to themselves, ‘I may be a caregiver someday; should I look for another job?’” Likewise, a reputation for such treatment can make it harder to recruit and damage the business’ brand.
To prevent such incidents, Calvert recommends that her clients ready a work coverage plan for each of their employees, “so they will be prepared if anyone has to be away for two or three months, whatever the reason.”