El­der­care lit­i­ga­tion: The new fault line

Em­ployee law­suits claim­ing dis­crim­i­na­tion due to their fam­ily obli­ga­tions are pil­ing up.

Employee Benefit News - - COMMUNICATION & ENGAGEMENT -

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.”

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