Caregiver's Rights

If you’re forced to miss work to handle caregiving responsibilities, you need to be aware of your legal rights as outlined in the Family and Medical Leave Act of 1993.

One of the most important legal rights you have as a caregiver concerns your employment. The unpredictable nature of caregiving—and the time that it takes to provide care—often make it difficult to continue working on a normal schedule. In fact, the Department of Labor’s latest investigation found that employee complaints with respect to balancing career and family often occur because an employer refuses to reinstate an employee after an extended leave. Generally, these complaints can be resolved fairly easily, although to date, 16 legal actions have been taken against employers for violations of the Family and Medical Leave Act (FMLA).

The FMLA, which President Clinton signed in 1993, helps caregivers balance caregiving and employment responsibilities. The FMLA provides eligible employees with up to 12 weeks of unpaid, job- and health benefits–protected leave each year. Individuals eligible for leave include those who face medical situations such as:

  • Care for an immediate family member (spouse, child, or parent) with a serious health condition
  • The adoption or foster care placement of a child
  • The birth and care of a child
  • The inability of the employee to work because of a personal, serious medical condition

The FMLA applies to most employers, including:

  • Public agencies, including state, local, and federal employers
  • Local education agencies (schools)
  • Private sector employers who employ more than 50 employees during 20 or more workweeks, and who are engaged in any activity affecting commerce

To be eligible as an employee you must:

  • Work for an employer who falls into one of the above categories
  • Work for the employer for more than 12 months
  • Have worked at least 1,250 hours over the previous 12 months
  • Work at a location in the U.S. or in any territory or possession of the U.S. where at least 50 employees are employed within a 75 mile range

There are also regulations concerning specific reasons for leave. These include:

  • Spouses employed by the same employer are entitled to 12 weeks of leave jointly for the birth of a child, the adoption or placement of a foster care child, or for the care of a parent.
  • Leave for birth care or child placement must conclude within 12 months of birth or placement.
  • Employees may take intermittent leave (e.g., one day off a week) instead of a 12 week block if:
    • FMLA leave is for birth and care or placement for adoption or foster care
    • FMLA leave is for medically necessary care for a seriously ill family member
  • Under some conditions paid leave (sick or vacation leave) can count as FMLA leave.

Additionally, there are specific definitions given in the FMLA eligibility requirements that you should be aware of. These include:

  • “Serious health condition” (i.e., illness, injury, impairment, or physical or mental condition)
    • A health condition in which the treatment or recovery lasts more than three consecutive days
    • Subsequent treatment, or a period of incapacity relating to the condition, lasting more than three consecutive days
    • Pregnancy or prenatal care
    • A chronic, serious health condition that extends over a period of time, requires periodic visits to a health care provider, and involves occasional episodes of incapacity
    • A permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer’s, terminal cancer)
    • Absences resulting from multiple treatments for restorative surgery, or which may result in a period of incapacity of more than three days if left untreated (e.g., radiation treatments for cancer)
  • “Health care provider”
    • Doctors of medicine or osteopathy who are authorized to practice medicine or surgery by the state in which the doctor is practicing
    • Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to manual manipulation of the spine to correct a subluxation as demonstrated by x-ray) authorized to practice in the state
    • Nurse practitioners, nurse-midwives, and clinical social workers authorized to practice, and performing within the scope of their practice as defined under state law
    • Health care providers recognized by the employer or the employer’s group health plan benefits manager

To take FMLA leave, an employee must give 30-day notice of the need to take leave, if possible. Employers may also require:

  • Medical certification supporting the need for leave due to serious health condition affecting the employee or immediate family member
  • Second or third medical opinions (at the employer’s expense) and periodic recertification of the individual’s medical condition
  • Periodic reports during FMLA leave regarding the employee’s status

For those who are eligible, FMLA leave provides legal protection of the caregiver’s health benefits and job. If an employee was covered under group insurance prior to leave, the employer must continue this coverage and to make arrangements for the employee to pay premiums while on leave. Additionally, employees who take FMLA leave must be restored to their original jobs, or to an equivalent job with equal pay, benefits, and other terms of employment. Finally, FMLA leave can’t result in the loss of any benefits earned by the employee or which the employee was entitled to prior to leave.

Only in cases of “key employees” can the employer refuse to reinstate an employee. A key employee is considered a salaried employee among the highest 10 percent of wage earners in the company who lives within 75 miles of the company. If restoration of a key employee will cause the company substantial damage, an employer must do the following things:

  • Notify the employee of his/her “key” status in response to the employee’s notice of intent to take FMLA leave
  • Notify the employee as soon as the employer decides it will deny job restoration, and explain the reason for this decision
  • Offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice
  • Make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration

Clearly, FMLA regulations protect caregivers against job or benefit loss and allow caregivers to take time off work to provide care. If you would like more information, call the Department of Labor’s FMLA information number at 1-800-959-FMLA.

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