GER 2-7
12/02
Abstract
Diverse Caregiving Situations and the
Unrealized Potential of the Family and Medical Leave Act: Coverage, Pitfalls,
and Recommendations.
Prepared by: Jan Park, Ph.D., Gerontology Specialist
104 HES, Room 239
405-744-6231
Parrott, T. M. (2002). Diverse Caregiving Situations and the
Unrealized Potential of the Family and Medical Leave Act: Coverage, Pitfalls,
and Recommendations. The Southwest
Journal on Aging, 5-13.
Implications for Cooperative Extension. This article examined the positives and
negatives of the Family
Medical Leave Act in being helpful to caregivers in an aging
society. Extension Educators can
help educate clientele to the upside and downside of this law and advocate
policy changes for a more effective law
that better fit the needs of persons providing care to elderly
family members.
Most elderly turn to families when they need
assistance with activities of daily living. In fact, family members provide 80%
of caregiving for the elderly. As need
for more intense care arises, families again are called on to give that
care. The act of caregiving places
considerable emotional, physical, and financial stress on family
caregivers. Few public programs exist
to help families in these situations.
The Federal Family and
Medical Leave Act (FMLA) was designed to address the
needs of families who give care to family members. This legislation assists only those
caregivers who are employed and provides time off from work to provide
caregiving duties. Caregivers who are
eligible under the provisions of the law are entitled to no financial
compensation, formal support services, or respite care. This does not benefit
family caregivers who leave paid jobs to provide full-time caregiving.
As more caregiving for the
elderly occurs, and more families experience the strain and pressures of giving
elder care, there will likely be increased demands on government and businesses
to help families. Also, the numbers of
employed caregivers will likely increase given the increasing numbers of
females employed in the paid labor force.
It seems inevitable that there will be a need for workplace assistance.
Currently little help is available for those who are not covered by the FMLA.
In certain instances employed family caregivers do have some options to
help pay for costs incurred when giving elder care. Caregivers can take advantage of dependent
care tax credit and federal assistance for veterans. Some larger companies provide information and
referral services to help family caregivers.
However, what caregivers need most is the option to take time off when
elders need care the most. Especially when unexpected
emergency health problems occur.
The FMLA only applies if the caregiver is employed
with a company of fifty or more employees at a work site, or within 75 miles of
a work site. Additionally, the employee must work full-time, has worked 1,250
hour during the previous 12 months, and has worked for the company for one full
year.
Employees who comply with these rules are entitled up
to twelve weeks of unpaid leave per year for the following circumstances:
Following the birth or
Diverse Caregiving Situations and the Family
and Medical Leave Act: (continued)
adoption of a child or following the placement of a
child for foster care; to care for a parent, spouse or child with a “serious
health condition”; when the employee cannot work due to a serious health
condition. Those persons taking
caregiving leave under the FMLA are federally guaranteed the right to reinstatement
at the same or equivalent work position with equivalent pay, working conditions
and benefits. Complying with this law
has met with problems due to ubiquities such as, “serious health condition” or
how the American with Disabilities Act operates in conjunction with the FMLA.
This law does allow an employee caregiver to provide
care to a family member for physical or psychological reasons. Physical care might involve assisting an
older parent with medical, nutritional, or hygienic needs, or to transport an
elder to and from medical appointments and treatments. Employees can provide psychological comfort
to elderly family members impaired by a “serious health condition” in either an
inpatient or at home setting. The FMLA
also allows leave time for employees who need to make care arrangements for an
elderly family member or to temporarily fill-in for another caregiver.
Complying with this law is not with out its
problems. Many problems can arise when
an employee attempts to take leave of absence to provide care to an older
parent. Several court cases have
arisen under the FMLA because there is disagreement over what constitutes a
“serious health condition”. What has come
out of various court cases is in order to qualify, a
condition must interfere with one’s ability to work. The condition must have serious consequences
if left untreated, or the condition must require on-going treatment by a health
care provider either as in-patient or home treatment. Court cases have clarified that when an employee
takes leave to care for an elder with a terminal illness the employee has
limited and specific rights. The law
does not allow leave time for bereavement, or for settling family member’s
legal affairs after death.
The FMLA can be tricky for employers as well as
family members. The employee must
specifically request a reduced work schedule for the purposes of providing care
and comply with all restrictions and limitations of the law. It is up to the
employer to determine whether the protected leave meets the laws requirements.
Despite many interpretations and court cases, the
FMLA has shortcomings when employed family caregivers try to use this option
when giving assistance to elderly family members. First, many occupations and professions are
not protected by the FMLA. Secondly,
leave is unpaid. A substantial
proportion of caregivers to elderly are women. Women are more likely to be
employed in occupations and in small businesses not covered by the law. Because the law only applies to companies
with 50 or more employees, many women employed in small businesses are not
eligible for protected leave for caregiving duties. Only about 5 percent of
Because protected leave is unpaid many caregivers cannot afford to leave a job to provide caregiving duties. This law is most helpful to upper and middle-income people who can afford to take leave time without the protection this law affords. To be truly helpful to caregivers providing care to an aging society, the FMLA needs to cover small businesses and part-time employees. Typically when workers find it too difficult to fit work schedules into the rigors of caregiving, many are forced into early retirement at a tremendous financial cost. A more effective law would allow intermittent leave, reduced work hours, and flexible work schedules and less administrative restrictions by the employer. A national survey indicates that caregivers desire less direct government intervention and more indirect help in carrying out caregiving duties while providing assistance to family members.