News & Insights

Family & Medical Leave Act (FMLA)January 22, 2021by Stanton LawPart 3: Caregiver Discrimination

The Important Relationships

Businesses and HR managers should recognize that providing better resources and support to employees during this workforce crisis will help prevent turnover and mitigate future off-budget expenses.

While the options available will differ depending on the size and nature of your business, all employers should be putting policies in place that acknowledge and attempt to address the increased tension between work and caregiving responsibilities.

A few key considerations:

Communicate with employees regarding their caregiving challenges. An employer is not obligated to provide an employee’s preferred adjustment, but there is value in acknowledging their particular circumstance.

Train managers on gender stereotyping, which can violate Title VII of the Civil Rights Act of 1964 and other laws and is a key component of many caregiver lawsuits. An example: applying a double standard, such as denying leave to a man who needs time off to take care of a child because he has a wife.

Emphasize the Family and Medical Leave Act (FMLA) during manager training. Given the complexity of the law—and the risk of litigation—make sure supervisors know they must talk to HR before answering any employee questions or making any decisions surrounding an employee’s FMLA or EMFLA leave.

Avoid paternalistic policies regarding work and time off. Managers aren’t in a position to determine what a pregnant employee can and cannot do; doing so may violate the Pregnancy Discrimination Act, Title VII or other laws.

Consider implementing benefits specifically targeted to caregivers. The company’s caregiver benefits should be available equally to men and women and geared to accommodate them at every stage of life. Make time available separate from other paid leave such as sick days.

Offer flexible work hours or work from home (WFH) options. Flexibility and WFH can show the caregivers on your team that you understand their concerns and are working to address them. WFH policies should be implemented with emphasis on the importance of a healthy work-home balance no matter the location. Flexibility can include something as simple as allowing employees to put in their time during evenings/early mornings/weekends. Flexibility may also mean offering employees the option of shifting to part-time work or taking unpaid time off when they need it.

Set expectations (if WFH is feasible and permitted) by establishing clear WFH policies. WFH policies should include a job description (including goals and expectations), required hours and scheduling limitations, and a detailed outline of technology, both hardware and available support.

Check in regularly and be on the lookout for cues from your employees that they are struggling. Burnout, screen fatigue, and declines in employee mental health should be addressed directly. Consider modifying your wellness benefits by offering discounted coaching, delivering beverages and snacks, and using other technologies to supplement in-person offerings.

Employers may think that they must deny a caregiving employee “special treatment” in order to maintain the appearance of fairness among the other employees. But these concerns are often theoretical at best, and they should be addressed, not by denying caregiver employees the flexibility they need, but by communicating clearly and openly with all employees.