Work/Life Squeeze: Caregiver Protections - Disability Management Employer Coalition (DMEC)

Caregiver Protections in Today’s Workplace

By Marti Cardi, JD

Vice President, Product Compliance
Matrix Absence Management

Many employers don’t realize the extent of job protections for employees with family responsibilities. But with many employees in the “Sandwich Generation,” job protections for family caregivers are quickly becoming more important.

In this issue, we will provide brief highlights of the workplace rights that we will cover in greater detail in the next five columns. We’ll look at familiar laws such as the Family and Medical Leave Act and Americans with Disabilities Act (ADA) but specifically from a caregiver perspective, as well as lesser-known caregiver protections under federal, state, and municipal laws. One reviewer called the caregiver issue “the next paid leave fault line.”

What Is Caregiver Discrimination?

Also called family responsibility discrimination, caregiver discrimination occurs when an employee suffers an adverse employment action based on biases and assumptions about how a worker with caregiver responsibilities will or should act, without regard to the worker’s actual work performance or preferences. Being a “caregiver” is not a protected classification under federal equal employment opportunity laws, but protections are available indirectly through Title VII and the ADA.

Moreover, some states and municipalities and the federal government do have laws or orders explicitly protecting employees with various family or caregiver responsibilities. There is also a state trend toward paid family leave, with laws in California, New Jersey, New York, Rhode Island, and Washington state (benefits starting in 2020), as well as the District of Columbia. The more recent of these laws include job protection while an employee is receiving the paid leave benefits.

As we prepare to delve into this topic through the year, consider these statistics:¹

The time and productivity costs of caregiver responsibilities:

More than 22 million Americans, about 1 in 6 workers, currently serve as caregivers to loved ones.
In addition to full-time jobs, caregivers spend an average of 29 hours a week on caregiving activities.
Workers took, on average, 9.8 days off over 12 months to manage their caregiving.
Caregiving costs the U.S. economy an estimated $38.2 billion annually in lost productivity.

Negative impacts of caregiver responsibilities on work or life reported by employees:

Getting their work done on time (39%)
Difficulty focusing at work (34%)
Missing work entirely (27%)
Financial hardship or loss of income (38%)
Increased use of alcohol or drugs (16%)
Fatigue (63%), stress (66%), and sadness (56%)

The Increase and Trends in Lawsuits

As more Americans wrestle with caregiver and workplace responsibilities, family responsibility discrimination (FRD) lawsuits are on the rise:²

- From 1998-2012, FRD cases increased 590% while other discrimination categories dropped 13%.
- Employees prevail in 67% of all FRD cases taken to trial — and many more cases settle before trial.
- Employees have recovered almost one-half billion dollars in publicized cases and settlements; the average settlement is $347,000.

The lawsuits are showing trends of significant increase in a few key areas. Pregnancy accommodation cases lead the way, with increases also in cases filed by men as caregivers and in claims based on elder care and lactation.²We will explore best practices to avoid falling on the wrong side of these litigation trends.

Join us in the coming months on this journey through the expanding world of caregiver protections and worker claims.