Calvin L. Keith, Editor; David P.R. Symes, Associate Editor
Perkins Coie

Vol. 13, No. 5
January 2007

DISCRIMINATION

Baby boomers (and their employers) face new work/life challenges

Modern medicine continues to increase life spans in the United States. Just as an example, the death rate for heart disease has dropped 60 percent in the last 50 years. The death rate for stroke has dropped even more, by 70 percent. And deaths from cancer have decreased 10 percent just in the last 15 years.

That all means that more people are living well into their 80s and even 90s. One consequence of that fact is that baby boomers — defined as anyone born between 1946 and 1964 — are increasingly likely to face the prospect of caring for their elderly parents. It's the new "work/life balance" — rather than balancing work with the need to care for their young children, many are struggling to balance the demands of the workplace with the need to care for their ailing parents.

As baby boomers face these new challenges, their employers do, too. Baby boomers represent about one-third of the American workforce. If they're having difficulty managing this new work/life balance, then it's inevitable that those difficulties will start to spill over into the workplace. You need to be prepared for the possibilities, not only because preparedness will help you avoid lawsuits but also because helping your employees will help your bottom line in the long run.

Potential pitfalls

According to a recent study by the Center for Law and Social Policy, 25 percent of all workers in the United States have eldercare responsibilities. The most common problems those workers face are related to scheduling conflicts and taking time off. At a minimum, employees who have eldercare responsibilities may need to take a few hours during regular business hours to care for an ill parent. As the parent's ailments become more serious, the employee may experience increasing demands on his time. And that's when a problem is most likely to arise in the workplace.

FMLA. If you have at least 50 employees, chances are you're covered by the federal Family and Medical Leave Act (FMLA). The FMLA requires covered employers to give eligible employees up to 12 weeks of unpaid leave per year for a variety of medical problems, including caring for a sick or injured parent.

The FMLA is an extremely complicated statute that can trip up many an unwary employer. (For more about that, see "Tell the DOL what you think.") By now, you're probably pretty well versed in how to recognize and handle FMLA leave when an employee is the one who's sick. But it can be a lot harder to identify and designate covered leave when an employee needs to care for a parent. Even if the employee knows that he's entitled to FMLA leave in those circumstances, the truth is that many employees simply don't think of it.

That's why it's so important to always ask employees the reasons for their absences and train supervisors to identify all types of FMLA leave. The trickiest aspects of identifying protected leave are:

• figuring out whether the parent suffers from a serious health condition (as defined by the FMLA); and
• discerning whether the employee is requesting leave to "care for" the parent or simply to help the parent out in some way.

1. The ADA prohibits employers from discriminating against employees who "associate with" a disabled person. That provision covers hiring, firing, and other terms, conditions, and privileges of employment. For example, you can't fire or refuse to hire someone because of an unfounded fear that she will be excessively absent or unproductive because of the need to care for a disabled parent.
2. ERISA prohibits you from denying benefits to employees, which could include denying leave under your company's leave policies to care for an elderly parent.
3. Surprisingly, nearly 40 percent of employees with eldercare responsibilities are men who work a full-time job. A male employee may have a claim under Title VII if you treat him less favorably than female employees who have similar eldercare obligations.

• Offer flexible work schedules. Many of your employees' eldercare issues can be addressed only during regular business hours, which usually means when they're supposed to be working for you. Offering a flexible work schedule should allow them to get those things done without impinging on their productivity. Sometimes all an employee needs is to start work an hour earlier each day so he can have some off time before 5:00 p.m. rolls around. Not only does flextime help employees, but it also helps you. Many studies show that flexible work schedules dramatically enhance productivity and improve employee retention, which in turn reduces turnover costs.
• Examine your benefits package. Offering a generous paid leave program can improve retention as well. Paid-time-off programs — which don't distinguish between vacation and sick leave — are especially beneficial for employees with eldercare obligations. In addition, you might want to consider offering long-term care insurance to help employees manage their parents' care.
• Don't assume anything.ľAs with any type of discrimination, don't assume that an employee's job performance will suffer because of her eldercare responsibilities. That's just a lawsuit waiting to happen.
• Think about the future. As more and more baby boomers approach and enter retirement, many experts are predicting a huge labor shortage. In short, there won't be enough new workers to replace the baby boomers who are retiring. On the other hand, experts are also predicting that more baby boomers than ever before will pursue partial or phased retirement. Handling their eldercare issues with compassion and flexibility may dramatically improve your chances of retaining these valuable employees. Some studies even suggest that by reducing the stress employees experience in caring for their elderly parents, you may reduce your health care costs as well.

Copyright 2007 M. Lee Smith Publishers LLC

OREGON EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual legal problems, but rather, provides information about current employment law developments. This newsletter is not intended to be and should not be used as a substitute for specific legal advice. Questions about individual problems should be addressed to the attorney of your choice.