We have previously noted that the "graying" of society will have a significant impact upon the workplace. Initially, employers were concerned with the dislocation which would occur if the baby boomers retired in great numbers. In fact, recent studies suggest that the 55-60 year olds may continue to work beyond age 65, even if it is at a different job.
One fact will not change: not only are baby boomers aging, but more and more of them will be caring for their parents, who will also be living longer. The "work-balance" dynamic in the workplace previously meant employees caring for their children. More and more, the dynamic will focus on employees caring for their parents.
Employers are wise to proactively address this need. The Family and Medical Leave Act (FMLA), which we discussed last time, requires most employers with more than 50 employees to do so. In part, the FMLA requires covered employers to provide covered employees up to 12 weeks of unpaid leave per 12 months period for the serious health condition of their parents.
"Parent" means biological parent or an individual who has stood in loco parentis to an employee when the employee was a child. In loco parentis individuals are those whose daily responsibilities were to care for and financially support the employee when the employee was a child. A biological or legal relationship is not necessary.
The most common family members meeting the in loco parentis test are grandparents. As more and more families have become non-traditional, it will be more and more common for employees to have been raised by their grandparents, or another adult not a parent.
The FMLA leave must be taken to "care for" a parent. The FMLA regulations define caring for a family member as encompassing both physical and psychological care, and including situations where, because of a serious health condition, a family member is unable to provide for his or her own basic health-related needs, transport himself or herself to the doctor, etc. The term also includes psychological comfort and reassurance to a family member receiving inpatient or home care. Finally, the term also includes situations in which an employee is needed to fill in for those caring for the family member, or to make arrangements for changes in care, such as transfer to a nursing home.
The need of an employee to care for elderly parents may also be protected by Americans with Disabilities Act (ADA). The ADA protects employees who have a relationship with a person who is disabled. For example, an employer might terminate an employee whose parent becomes disabled, fearing that the employee will spend too much time caring for the parent. If the employer does this, it will violate the ADA.
Whether subject to the FMLA, the ADA or not, employers are wise to address this eldercare issue. It will only grow in importance and if not handled properly, will create an unnecessary disruption in the workplace.
Joseph Pellicciotti is a lawyer, professor and associate vice chancellor at Indiana University Northwest. Opinions in this column are solely his.
