Parents of a child with special needs understand the difficulty in having to care for a special needs child and work full or part time outside the home. Unfortunately many employers do not understand these challenges and do not provide flexibility for carers of children with special needs.
Thankfully for parents there are certain protections to ensure that you are not discriminated against in your employment because of your caregiving responsibilities. Furthermore, the Department of Labor recently clarified its guidelines for the availability of Family and Medical Leave Act (FMLA) for parents of adult children with disabilities in certain circumstances.
Discrimination against caregivers
The Equal Employment Opportunity Commission enforces the ADA disability discrimination laws in the workplace. The ADA covers private employers with 15 or more employees and state and local government employees regardless of the number of employees.
In addition to prohibiting discrimination against people with disabilities, the ADA also protects those who are associated with a person with a disability. Under this “association” provision, an employer may not treat a worker less favorably based on stereotypical assumptions about the worker’s ability to perform job duties satisfactorily while also providing care to a relative or other individual with a disability.
For example, the “association” provision makes it unlawful to refuse to hire an individual who has a child with a disability based on an assumption that the applicant will be away from work excessively or be otherwise unreliable, or denying an employee health care coverage available to others because of the disability of an employee’s dependent.
While reasonable accommodations are not available to employees only associated with someone with a disability, the employer is prohibited from discriminating against that person. For example, the ADA would not require an employer to modify its leave policy for an employee who needs time off to care for a child with a disability. However, an employer must avoid treating an employee differently than other employees because of his or her association with a person with a disability.
To report a possible violation, you must contact the EEOC immediately.
The Family And Medical Care Act For Caregivers
The FMLA entitles an eligible employee to take up to 12 workweeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. The 12 workweeks need not be consecutive but may happen anytime throughout the 12-month period. An eligible employee requesting FMLA leave to care for a son or daughter less than 18 years of age must only show a need to care for the child due to a serious health condition. However, there are different regulations regarding FMLA leave to care for an adult child with disabilities.
The Department of Labor recently issued guidance about the availability of FMLA leave for an employee to care for an adult child with a disability. While guidance is not “law,” it does provide insight for investigators, employees, employers, and courts to decide if FMLA is applicable.
To be eligible for FMLA, the adult child must:
1. Have a disability as defined by the ADA
In essence, the ADA defines disability as a physical or mental impairment that substantially limits one or more of the major life activities of an individual. The disability can occur before or after the child’s 18th birthday – age of onset of the disability is not relevant to the application of FMLA.
2. Be incapable of self-care because of a mental or physical disability
FMLA regulations define “incapable of self-care because of mental or physical disability” as when an adult “requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ (ADLs) or ‘instrumental activities of daily living’ (IADLs).”
Activities of daily living include “adaptive activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing and eating, and possibly medication management. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.”
Whether a person is incapable of self-care is a fact-specific determination that must be made based on the individual’s condition at the time of the requested leave and should focus on whether the individual currently needs active assistance or supervision in performing three or more ADLs or IADLs.
3. Have a serious health condition for which they are in need of care
Under the FMLA, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.
Many impairments will satisfy both the ADA’s definition of “disability” and the definition of “serious health condition,” even though the tests are different.
The child’s serious health condition need not be directly related to his or her disability.
In addition to the above criteria, the caregiver must also meet the other eligibility requirements for FMLA. FMLA only applies to private employers with 50 or more employees and state and local government employees (regardless of the number of employees). To be eligible for FMLA leave, the employee must: (1) have been employed by a covered employer for at least 12 months; and (2) have had at least 1,250 hours of service during the 12-month period immediately before the leave started. If all these conditions are met, the parent may request FMLA.
To report a possible FMLA violation, please contact the Department of Labor, Work Hours division.
Understanding your rights as a caregiver for a person with a disability is important. However, you should also be open and honest with your employer about your needs. Often times, employers are willing to work with employees to address special concerns (such as needing to leave early to attend therapy appointments). Keeping an open dialogue with your employer can go a long way toward improving the work-life balance required when caring for a child or adult with special needs.