Family care bias report illustrates need for flexibility

Family care bias is turning into a red-hot issue for employers, according to a report published by the AARP Public Policy Institute and the Center for WorkLife Law at the University of California Hastings College of the Law. Women are affected more than men, the report notes, and flexibility is needed.

Even though caring for older relatives has become “the new normal” in the United States, work-related discrimination against family caregivers is becoming more commonplace.

This trend affects women more than men, the report noted, because 65% of caregivers are women. In fact, the average caregiver is a 49-year-old woman employed full-time who spends an additional 20 hours per week providing care for an elderly parent or relative.

There are a couple of main reasons for this trend, researchers found.

“Most people are living to much older ages, while hospitals have adopted the ‘quicker-and-sicker’ model of care,” said Joan C. Williams, director of the Center for WorkLife Law and co-author of the AARP report, Protecting Family Caregivers from Discrimination. “Hospitals are releasing people after just a few days’ care with the expectation that they will continue to receive in-home care. The responsibility for providing this kind of care normally is taken on by family members.”

The impact of caregiving needs on employers will only increase as their workers, and the workers’ family members, grow older. U.S. Census Bureau statistics show that in 2010, more than 40 million Americans (or 12.5% of the U.S. population) were age 65 or older. The bureau projects that by 2030, this number will grow to 72 million (approximately 20% of the population).

The limits of the law

The report includes several examples of employees who lost their jobs because of caregiving responsibilities. For example, a paralegal who was fired after she requested time off after her father had a stroke filed a complaint under the Family and Medical Leave Act (FMLA). Her case was dismissed after the court determined that she had not been employed for a full 12 months, as required by the law.

“The FMLA is the law, which many believe offers the best protections for family responsibility discrimination,” said Williams. “But the FMLA only covers about half the U.S. workforce, so there are many problems and concerns surrounding leave that [are] not covered by the law.”

For example, the FMLA applies only to businesses with 50 or more employees within a 75-mile radius. Many smaller-sized companies are not subject to the law’s requirement, which is a problem, because small businesses tend not to offer the time off and leave benefits provided by most large employers.

Other federal laws, such as the Americans with Disabilities Act and the Age Discrimination in Employment Act, offer some additional protections, but the federal laws are proving inadequate to meet employees’ needs, according to the report. Some states have enacted leave laws, but even with these protections, at least half of U.S. workers would have no real legal recourse if discharged for taking time off for family care responsibilities.

“A growing number of people who need time off or a more flexible schedule to care for elderly parents are finding themselves in a pickle,” said Williams. “What caregivers need is intermittent leave, additional work shift options and more flexible hours.”

Workplace flexibility a solution for some

Many employers understand the problems caregivers face and are offering employees flexible hours and telework arrangements to help them balance work and family needs. Dozens of management consultants and workplace experts contend employers that offer alternative work arrangements and flexible hours usually have happier, more engaged and more productive workforces. Still, business demands and strict operating schedules can create barriers that are tough for employers and employees to overcome.

“Many employers that don’t offer flexible work arrangements to older employees … are quite flexible with students,” said Williams. “Why not offer all employees the same access to flexible hours? Research clearly shows employers that do this have lower turnover and better productivity.”

While Williams and other workplace flexibility specialists recommend that employers adopt or update their alternative work arrangement and flexible hour policies, some local governments have taken the matter a step further by enacting ordinances to prohibit family responsibility discrimination. The AARP report includes a list of 67 local governments that have enacted such laws, although only seven of the laws offer specific work-related protections for the caregivers of older adults. The other 60 laws focus largely on protections for the caregivers of children.

Recently, California became one of the first states in the union where legislation that expressly prohibits family responsibility bias was introduced in the state assembly. In addition, a similar legislative proposal is pending in New York City.

“This issue is going to keep growing in importance as the U.S. population continues to age,” Williams said. “Employers need to be aware and prepare to deal with it, because it is definitely here to stay.”

Bill Leonard is senior writer for SHRM.

©2012 SHRM. All rights reserved.

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