Magazine article Risk Management

Caregivers in the Crosshairs

Magazine article Risk Management

Caregivers in the Crosshairs

Article excerpt

Employers must be sensitive to the needs of employees who care for children and seniors in order to avoid costly family responsibility discrimination lawsuits.

When Maryland State Trooper Kevin Knussman's wife was confined to bed after childbirth in 1994, he requested 30 days of full parental leave. After his request was denied, Knussman sued the state police in what was to be the first family medical leave case to directly challenge the denial of rights to a father. The jury awarded him $375,000 for emotional damages in the first-ever sex discrimination verdict in conjunction with the federal Family and Medical Leave Act (FMLA).

His case is no longer unusual-lawsuits involving workers' needs to care for loved ones have risen 400% since 1998. The burgeoning legal area is known as "family responsibility discrimination" (FRD) and is now primarily based on the Equal Employment Opportunity Commission's (EEOC) 2007 FRD guidelines that specify employers' obligations to workers who provide some level of care for young children, disabled relatives or elderly family members.

Thorough understanding is vital because no single federal law specifically prohibits FRD. Employees file suits under varied state and federal regulations, including Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA) and the FMLA.

Scope of the Problem

By 1996, 25% of America's workforce was providing at least informal care to a family member. As Baby Boomers age and Americans live longer, the number is rising, with millions of so-called "sandwich generation" workers now caring for both elderly relatives and their own children. In January 2008, an expansion of the 1993 FMLA also granted up to six months of unpaid leave to relatives of wounded military personnel. The missed workdays, early departures and on-the-job distractions of caregivers are estimated to cost employers $33.6 billion each year, according to the Met Life Mature Market Institute.

The business impacts are significant. Absenteeism among female employees with caregiving duties cost almost $270 million, and partial absenteeism (extended lunch breaks, early departure, etc.) was estimated at another $327 million. Related workday interruptions added $2.8 billion.

In 2004, a Northwestern University Medical School team analyzed health risk data from 16,500 workers at a major financial company. In two weeks, 10.6% missed an average of 7.7 hours to care for an ill dependent. Caregivers reported higher levels of work limitations, especially related to time management and psychological demands. The more hours devoted to caregiving, the less work was accomplished. Missed time cost the employer more than $240,000 in lost wages, which if extended over a full year, would have exceeded $6 million. And that was only among the survey respondents.

Adjudicated FRD claims rose from 97 cases in 1996 to 481 in 2005. Won by plaintiffs over half the time, at least 20 of those verdicts and awards exceeded $1 million.

One such case involved a male maintenance worker who sued his employer of 25 years, alleging interference with the FMLA. Having cared for his Alzheimer's-stricken father and terminally ill mother, he won a verdict of $11.6 million (later reduced on appeal to an undisclosed amount).

The EEOC is concerned about friction between caregiving responsibilities and job obligations. Sometimes a worker believes this perceived "wall" limited advancement opportunities because it is viewed that the employee is more committed with caregiving than job requirements. In one case, a schoolteacher who gave birth to a disabled child was reassigned as a half-time teacher, half-time resource room staff member. She considered it a demotion that reduced her authority and responsibility, so she sued the school board under the ADA and won.

Elements of Risk

The potential for claims has risen since Burlington Northern v. …

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