The FMLA, ADA and caregiver leave

Caregiving impacts nearly 40 million families in the United States. As Baby Boomers age, caregiving for a family member is becoming a reality for many. About 60 percent of Americans find themselves juggling work and other responsibilities while caring for a family member.

Caregiving is not just about the elderly. “Working caregivers” are increasingly challenged to care for dependent children, a spouse/partner, siblings and yes, even family pets. (Time off to care for an ill or deceased pet has been the subject of course cases across the country. Currently there are not any regulations that cover protected time off for pets, but some cities in California have blurred the lines.)

Related: A third of investors “sandwiched” on caring for parents, grown children

The Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) are the most well-known federal laws that address employee leave. With the ADA, the primary protection is for an employee’s own medical disability that requires intermittent and/or extended leave as a “reasonable accommodation.” In 2016, the EEOC released Employer-Provided Leave and the Americans with Disabilities Act to assist employers in this area.

While the ADA protects certain types of employee leave, governing bodies have made clear this leave is specific in its intent. The ADA does not protect employees who need to care for a family member’s disability or illness.

On the other hand, the FMLA is a leave law. It mandates leave to care for family, including those who are ill. But “family” in the federal FMLA is narrowly defined. And, of course, leave is unpaid. However, many states have enacted leave laws which are sometimes more generous than the federal law and have expanded the definition of ‘family.” You should be aware of the requirements in states where your business operates.

Despite the flurry of high-profile announcements by employers about new or expanded family leave programs, the U.S. Bureau of Labor Statistics reports that less than 15 percent of private sector employees are covered by paid leave programs.

That’s the reason advocates and others increasingly look to the states for models on how to help employees meet the strain of caring for family members of all ages.

California has long taken the lead on crafting laws that accommodate changing social realities. It has acted on the belief that, in relieving stress and unnecessary juggling of responsibilities, employers help reduce absence, increase productivity, and improve engagement.

California’s law replaces 60 to 70 percent of wages for up to six weeks. And the Golden State is not alone. New Jersey and Rhode Island have had paid family leave for many years. The recently enacted, New York state law now offers up to eight weeks with 50 percent of pay and will expand to 12 weeks at 67 percent of pay when it’s fully implemented in 2021. The District of Columbia and other jurisdictions have passed similar laws. Washington state will enact new paid family and medical leave payroll deductions starting January 2019, with benefits available in 2020.

Like California, other states want to maintain climates that help drive above average economic growth and, especially, growth in high-wage sectors like technology. They know family realties and expectations are changing, and that it’s prudent to accommodate those changes in ways that benefit everyone.

Government can only do so much. Private employers need to continue to step up and help caregivers discharge both their job and personal responsibilities. The good news is, they are. While only a slice of private employers cover paid family leave, the number is growing.

Employers are also taking other steps to assist employees who are caregivers, such as:

• Offering “family” rather than parental leave. Most private sector paid leave is maternity and parental leave. Only about 20 percent of such programs are actually family leave. During a discussion at the 2018 DMEC Annual Conference, employers indicated that they are increasingly aware of the need and desirability to define family more broadly. I anticipate that more new paid leave programs will be truly be for family leave, and that those employers who currently offer maternity or parental leave will turn them into family leave programs.
• Offering daycare. More employers are providing on-site daycare and subsidies for daycare. On-site daycare is especially effective, as it allows parents to interact with their children during the workday. This dramatically reduces stress, distraction, and absence.

Like work, caring for family is a reality. There’s no reason both cannot be accommodated in ways that work for everyone. Forward-looking employers will continue to look for ways to achieve this balance.

Read more:

• Tax bill provision designed to spur paid family leave to lower-wage workers
• 3 ways to support employee caregivers
• Caregiver benefits too taxing for many small businesses

Terri L. Rhodes is CEO of the Disability Management Employer Coalition (DMEC).