Employee/Caregivers and Workplace Rights

By James P. O’Brien, Jr., Esq.

Responsibility for the every-day care of Alzheimer’s patients often is assumed by dedicated family members. Indeed, reports show 70 percent of people with Alzheimer’s disease live at home, where families provide at least 75 percent of their care. As those who provide care for a family member who has Alzheimer’s disease can attest, the task can be an all-consuming responsibility with significant implications for the caregiver. For the many caregivers who are employed, their care for a loved one may have a serious impact on their ability to perform their jobs at a time when maintaining their employment, and the income associated  with it, may be critically important. A study conducted by the National Alliance for Caregiving and AARP revealed that close to three-fourths of Alzheimer’s caregivers had been employed at some time after they began providing care. Their caregiving responsibilities, however, often took a toll on their careers. More than half of Alzheimer’s caregivers in the study reported that their caregiving duties required them at least once to report late for or leave early from work or to leave work during the day. Thirteen percent of caregivers also reported that their caregiving led them to take on a less demanding job or to reduce their work hours from full-time to part-time.

Many others reported that they had taken a leave of absence from work or had left the workforce altogether. There is little question that the potential impact of caregiving on one’s employment may be significant. Fortunately, many working caregivers of loved ones with Alzheimer’s disease have certain legal rights, which may assist them in carrying out their critical caregiving functions while maintaining their employment. The following is a discussion of those rights and the steps that caregivers must take to preserve their rights.

The federal Family and Medical Leave Act (“FMLA”) allows qualified workers twelve weeks of unpaid leave in any twelve-month period, with continuation of health benefits, to care for a spouse, child or parent (but not parents “in law”) who has a “serious health condition” such as Alzheimer’s disease.

Following an FMLA leave of absence, an employee is entitled to be returned to the same position he or she held when the leave com-menced, or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment. Although FMLA leave is unpaid, employers may require, or an employee may elect, to substitute paid vacation, personal, or sick leave for unpaid FMLA leave.

Employees are entitled to leave to provide both physical and psychological care for a seriously-ill family member. Leave under the FMLA is available in situations where, because of the condition, the family member is unable to care for his or her own basic medical, hygienic, safety or nutritional needs or is unable to transport himself or herself to the physician. The

FMLA also authorizes leave to provide psychological comfort and reassurance. In addition, an employee may seek leave to fill in for others who are caring for the family member, or to make arrangements for changes in care (such as nursing home placement).

While the typical FMLA leave of absence is for a block of time, the FMLA also authorizes intermittent leave or a reduced leave schedule. Intermittent leave is leave taken in separate blocks of time while a reduced leave schedule is a work schedule that reduces an employee’s usual number of working hours per workweek or work-day. Leave of this nature might be appropriate in situations where other care is normally available, or where care responsibilities are shared by the employee with another family member or with a health care professional.

Among the objectives of the FMLA is to “balance the demands of the workplace with the needs of families, [and] to promote the stability and economic security of fam-lies.”

The regulations interpreting the FMLA note that “increasingly, America’s children and elderly are dependent upon family members who must spend long hours at work. When a family emergency arises, requiring workers to attend  to seriously-ill children or parents... workers need reassurance that they will not be asked to choose between continuing their employment, and meeting their personal and family obligations or tending to vital needs at home.”

While these objectives certainly are laudable, it is important to note that the FMLA places certain, often technical, obligations on employees who seek to avail themselves of the benefits of the FMLA and the failure to fulfill those obligations may place those benefits in jeopardy.

For instance, an employee seeking FMLA leave must provide his or her employer with notice of the need for leave. If the need for leave is foreseeable, as in the case of a family member’s planned medical procedure, the employee must provide at least thirty days notice.

If thirty days notice is not possible, notice to the employer must be given as soon as practicable. The regulations implementing the FMLA note that, in such cases, it is expected that an employee will give notice to the employer within one to two working days of learning of the need for leave.

When giving notice to an employer, the employee need not expressly mention the FMLA, although the better practice is to do so. In addition, while the employee’s notice may be given orally, the employee should consider complying with any employer-notice requirements for requesting leave, including any written-notice requirement.

If an employee seeks a leave of absence under the FMLA to care for a family member who has Alzheimer’s disease, the employer may require the employee to provide confirmation of family relationship.

Such confirmation can be accomplished by means of a state-ment from the employee or through documentation such as a birth certificate or a marriage license.

Employers may also require that an employee’s leave to care for a seriously–ill relative be supported by a written certification issued by the relative’s health-care provider. Certification is only required if requested by the employer. In  cases where the leave is foreseeable and thirty days notice has been provided, the employee should provide the medical certification before the leave begins. In other instances, the employee should provide written medical certification within two business days of providing notice of the need for FMLA leave or, in the case of unforeseen leave, within two business days after the leave commences.

Employees should be aware that employers may only demand the provision of certain medical information which relates only to the serious health condition necessitating the requested leave. In the case of an employee providing care for a seriously-ill relative, the health-care provider should indicate whether the patient requires assistance for basic medical or personal needs or safety, or for transportation.

If not, the statement should reflect whether the employee’s presence to provide psychological comfort would be beneficial to the patient. The employee should indicate on the certification the care he or she will provide and an estimate of the time period for the care. If an employee submits a completed certification, signed by the health-care provider, the employer may not request additional information from the health-care provider.

A health-care provider representing the employer may, however, contact the author of the medical certification, with the permission of the employee, in order to clarify and authenticate the medical certification. The FMLA does make provision for recertification, but only at certain intervals. An employer may also require the employee to periodically report on his or her status and intent to return to work.

Fortunately, employees themselves are not required to have an in-depth understanding of theFMLA rules. Instead, employers are required to post notices concerning the FMLA and, critically, employers covered by the FMLA must provide to all employees written information concerning their rights and obligations under the FMLA, as well as any company-specific FMLA rules. For instance, companies are free to define their twelve-month periods (e.g., calendar year) during which employees are entitled to twelve weeks of leave. Thus, any questions concerning FMLA procedures or application should be directed to the appropriate employer representative.

Finally, it is important to note that the FMLA does not covers all employees. Indeed, the FMLA covers only employers with fifty or more employees. Generally speaking, in order to qualify for unpaid leave, an employee must ...FMLA places certain, often technical, obligations on employees...have worked for the employer for at least twelve months and have worked at least 1,250 hours during the twelve-month period immediately prior to the date the leave begins.

These limitations alone exclude millions of workers from FMLA coverage. Still, many employers who are not covered by the FMLA make some provision for employee leaves of absence. Moreover, bills have been introduced in Congress and in the New York State legislature to expand the coverage of the FMLA to include small employers, who employ most of the nation’s work for large employers.

Under certain circumstances, the FMLA may provide caregivers of Alzheimer’s patients with much needed flexibility that will enable them to tend to their critical care responsibilities while maintaining their employment at a time when income associated with that employment may be critical. It is therefore critical that caregivers understand the benefits and obligations of their employers’ FMLA policies to insure that they take advantage of all available rights while at the same time protect their employment.