What to Know about FMLA and Caregiving Responsibilities

In the United States, people are increasingly taking on caregiving roles, especially for elderly parents. This impacts a lot of parts of the economy and society, and employers are finding it’s a situation that’s impacting them. 

When an employee is dealing with an aging parent, it can take them away from work. They might have to help with their daily life, take them to appointments, and juggle a lot of things all at once. This could mean more time off work or less productivity. 

There are also emotional impacts on employees that come from dealing with the personality changes with age that their parents might be going through. That can impact someone’s quality of work. 

All of these are things that employers have to think about and plan for because these situations are likely to continue growing. 

Employers should know the ins and outs of the Family and Medical Leave Act and how to manage employees who are taking on a caregiving role for an adult. 

Benefits for Caregivers

Around 53 million Americans are serving as a caregiver for a relative or loved one, and 6 in 10 are doing this while they’re also working to earn a living. This information comes from a 2020 report from AARP and the National Alliance for Caregiving. 

Caregivers who also work tend to report higher levels of depression and health problems, more lost time, and lower productivity. 

There are things employers can do to help their employees rather than work against them when they face these situations. 

Human resources departments can consider the following support for caregivers. 

  • Employers are increasingly offering flexible work options, especially since the pandemic. This is beneficial for employees and employers, even outside of situations that involve caregivers. For example, a lot of employers are having a hard time filling open positions, but flexibility in the work environment or schedule can be an appealing recruitment tool. Remote work, modified schedules, a compressed workweek, or job-sharing are all ways that you can offer more flexibility. You don’t necessarily need to have a formal policy for this to work—you can implement flexibility on a case-by-case basis that’s going to work best for everyone. 
  • Think about offering counseling and support services. For example, the HR department might have an Employee Assistance Program or some other types of resources that are especially for caregivers. Employees might receive counseling on time management and stress reduction. 
  • You can offer eldercare referrals through consultants or a database. That can cut down on the amount of research employees have to do when they need to connect with services for their loved ones. 
  • Depending on your company policies and state laws, your employees might be able to use their paid sick days or vacation leaves to put toward the time they take off for caregiving. 

What is the Family and Medical Leave Act?

As an employer, it’s beneficial to you to proactively create a company culture that supports the needs of your employees. 

That’s a separate issue from being compliant with the FMLA. 

The FMLA provides some employees with up to 12 weeks of job-protected, but unpaid leave each year. The law also requires that available group health benefits are maintained during a person’s leave. 

The goal of this law is to help employees balance their family responsibilities with their job duties and take reasonable unpaid time off for medical and family reasons. 

The law applies to all public agencies, all public and private elementary and secondary schools, and all companies that have at least 50 employees. Employers are legally required to provide eligible employees with up to 12 unpaid weeks of leave per year for reasons including:

  • The birth or care of a newborn child
  • Placement of a child for foster care or adoption
  • Providing care for an immediate family member, including a parent with a serious health condition
  • Taking medical leave when an employee can’t work because of their own serious health condition

An employee may be eligible for leave if they worked for at least the past 12 months for their employees, at least 1,250 hours over the past 12 months, and work somewhere that the company employs 50 or more employees within a 75-mile radius. 

Employees don’t have to take time off in one block. They can take the time on an intermittent schedule. 

If an employee is substituting accrued paid leave for their FMLA leave, they have to comply with the normal paid leave policies of their employer. 

An employee typically has to give 30-days’ notice of the need for this leave. If the employee can’t give this much notice, they should provide their employer notice as soon as they can. 

Employees aren’t required to share a particular diagnosis with their employer, but they have to provide sufficient information for a determination of whether or not the leave is qualified. 

As an employer, you can’t request medical records, but you might require that an employee provide some type of medical certification. 

Reinstatement

There are very few exceptions when employers aren’t required to return an employee to their prior position after their FMLA-covered leave. 

That doesn’t mean employers don’t make mistakes in this area. 

For example, it’s somewhat common for an employer to reinstate an employee to a lesser position. If the former position isn’t available, the employer can give one that’s an equivalent, but this has to be the case in nearly every way, including the pay, benefits, duty, shift, and schedule. If you were to reinstate an employee, but they didn’t have the same responsibilities or job perks, it could become problematic. 

You also, as an employer, are required to reinstate an employee immediately after giving two days’ notice. You legally can’t make an employee wait for their position to open up. 

Another area where employers can get in trouble here is with a failure to reinstate benefits. Employees are entitled to the same benefits, and you can’t make them take a physical, wait for open enrollment or requalify for coverage in any way. If there was an automatic raise enacted while an employee was on leave, they’re also entitled to that. 

Can You Fire An Employee for Missed Work Due to Family Responsibilities If FMLA Doesn’t Apply?

Many small businesses have under 50 employees, so they don’t have to comply with FMLA. 

Some states have their own legislation, so you need to determine if any of this is applicable to you. 

If not, you might wonder if you can fire someone who’s missing work due to caretaking duties. The short answer is that yes, as an employer, you might be able to do this. 

You do need employees who are reliable and are doing the jobs you hire them to do

That doesn’t mean that your first move should be firing someone because of family responsibilities. 

You have to remember again that there is a labor shortage, and employees are leaving their jobs for various reasons. Not having the flexibility available to take care of family concerns is one of those reasons. 

If you want a thriving, strong business, you need employees who feel like you care about their needs. Being understanding about caring for elderly parents or family members is a big part of this, and it’s going to keep being a priority for more people over the years as Baby Boomers are aging. 

As we mentioned, if at all possible to accommodate flexibility in scheduling or remote work, it can be in your favor to do so. When employees feel like they’re supported, they’re going to be able to give their all to their jobs. They’re going to be more committed to you as an employer and more focused when they are at work. 

From the employer’s perspective, there are a lot of things they can do too. For example, encourage your employees to come with you and speak to you openly and honestly about their role as a caregiver. The more there’s transparency in communication, the better off you are to find solutions that work on both ends. 

If your employer comes to you, you can work with them to find solutions, and you can connect them with resources. 

For example, there are local agencies on aging that can help your employees connect with community resources. 

The National Family Caregiver Support Program funds different initiatives to help informal and family caregivers. The RAISE Family Caregiving Advisory Council provides recommendations to the Secretary of Health and Human Services on models of family caregiving and how to support family caregivers. They also work to coordinate better access to government programs. 

As an employer, you have legal responsibilities in some cases to your employees when they need time to care for a family member. Beyond your legal and regulatory compliance requirements, you also want to look at caregiving demands on your employees through the lens of humanity. To have a strong business, you need an empowered, happy workforce. Think about how you can support family caregivers now and going forward, and it will likely improve your entire business.

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Laws change in a moment.

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Visiting on behalf of:

Have employees in more than one state? SUBSCRIBE HERE!

THANK YOU FOR SUBSCRIBING!

We hope you find our newsletters help you better navigate employment and labor law issues.