Bringing Elder Care Home

By John Paul Marosy, President
Bringing Elder Care Home LLC
jpmarosy@charter.net
(508) 854-0431

I recently interviewed Deborah Cuevas Hill, policy counsel for he National Partnership for Women and Families. The Partnership is a non-profit, non-partisan organization that uses public education and advocacy to promote fairness in the workplace, access to quality healthcare, and policies to help women and men meet the dual responsibilities of work and family.

VISIT US AT ASA!

Come join the discussion on elder caregiving issues at the ASA/NCOA conference in Philadelphia.

On Thursday, March 10th at 10:30: "Innovations in Family Caregiver Wellness: Welcoming the Changing Face of Caregiving" with panelists Connie Siskowski, Ph.D., of Boca Raton Interfaith Action and Eboni and Terrence Green of Caregiver Support Services..

Also on March 10th, at 2:00:
"Employed Family Caregivers: Corporate and Community Collaborations Supporting Work/Life Balance" with Leah Ann Dobkin, Ann Bannes of St. Andrew's Resources for Seniors, Zanda Hilger, and Bernadette Fusaro of AT&T.

Complete conference information and registration at www.asaging.org

The Partnership drafted the first version of the Family and Medical Leave Act (FMLA) and led the coalition for nine years until the law was enacted in 1993. Since then, 50 million Americans have taken FMLA leave to care for a parent or child or to care for themselves when they have a serious medical condition.

JPM: What is the issue with FMLA right now?

DCH: We suspect that the Department of Labor will propose regulations that will alter the FMLA, possibly as early as March of this year. The same groups that opposed FMLA before it was enacted have proposed bills, year after year, since it was enacted to limit FMLA. To date, they haven't been able to get enough votes to limit FMLA. Now, they are trying to limit FMLA through regulations. These are primarily business groups.

JPM: Is there a particular group that has taken the lead on this?

DCH: Yes. There are a number of groups, but the effort is being led by the Chamber of Commerce which has historically opposed FMLA.

JPM: What are the specific issues?

DCH: We suspect three changes will be proposed to the regulations. First: the definition of a "serious health condition." Right now, this is defined as a period of incapacity that is three days or longer. We suspect that one proposal will be to make the length of incapacity ten days. So, any incapacitating illness that is less than ten days would not qualify.

The second issue that may come up is Intermittent Leave. Right now, the employee can take leave in the smallest increment by which the employer tracks employee time. So, if the employer uses an increment of six minutes to track employee time, then the employee can take leave in that increment. What might be proposed is to set a half-day minimum every time an employee takes leave. So, an employee would not be able to take leave in less than half-day increments.

The third issue is the one that we think definitely will come up because it emerges from a Supreme Court case called Ragsdale vs. Wolverine of 2002. In that case, the court ruled regarding employers that don't notify employees before they take their leave that that leave is going to count toward the employee's annual twelve-week limit. The court said that the employer won't be penalized for not designating the leave, as long as the lack of notice doesn't cause the employee any harm.

There's going to be a proposed change regarding what would be the penalty to the employer. What the regulations said, prior to the Supreme Court case, is that 1) an employer must notify an employee that the employee is using his or her FMLA leave before the employee actually goes on leave and 2) if an employer fails to notify and designate the time of FMLA-qualifying leave, then the employer would be penalized.

The first part (notice of using FMLA leave) was left intact by the court. What's going to be changed is the part about the employer being automatically liable for anything. The DOL is going to have to write a regulation about this. What we (the Partnership) would like the regulation to say is that an employee could still get extra leave if they were able to show that they would have acted differently if the employer had told them that they were taking FMLA leave.

JPM: Our readers have told us that the ability to take intermittent leave in small increments is important for employees dealing with elder care. Would you agree that this has a special relevance regarding elder care?

DCH: I do. If an employee needs to take someone with a chronic condition to the doctor or to a therapy visit, the employee might not need a half-day to provide that care. They might only need an hour here or there. By forcing an employee to take a half-day off, that means that, later on, the employee is going to have less leave left to provide elder care. And, of course, many times, the employee cannot afford to take a half-day of unpaid leave. We are talking about four hours that are unpaid.

JPM: What are the implications of the other issues for elder care/work balance?

DCH: All three areas are important for elder care. For example, the definition of serious illness is very important, too. A serious illness could be serious without the employee having to take ten days off. For example, an appendectomy or a heart attack might require immediate hospitalization, but you might not be in the hospital for ten days. Also, the need for care for persons with chronic conditions, like diabetes, can be episodic.

JPM: Is there uniform support among employers for these changes?

DCH: The businesses pushing for this change say that the "serious illness" definition is vague and overly broad, but, according to a 2000 survey of employers by DOL, the vast majority of employers (83% of those surveyed) believe that the FMLA defines "serious health condition" appropriately and clearly.

The groups proposing these changes to FMLA are arguing that the goal is to see that FMLA can work better. But, in reality, these are the same groups that opposed passage of FMLA in the beginning.

JPM: Where can people get more information and who do they contact if they want to take action on these issues?

DCH: For more information, visit the Partnership's website at www.nationalpartnership.org To let DOL know that these types of changes, if proposed, will be harmful, contact: Victoria Lipnic, Assistant Secretary for Employment Standards, US Dept. of Labor, Washington, DC 20210 or (202) 693-0200 or email at lipnic-victoria@dol.gov or fax at (202) 693-0218. To be added to the Partnership's action alert list, contact Deborah Cuevas Hill at dchill@nationalpartnership.org

John Paul Marosy is the author of Elder Care: A Six Step Guide to Balancing Work and Family, available from Bringing Elder Care Home Publishing online at www.bringingeldercarehome.com or by calling 508-854-0431. Visit www.bringingeldercarehome.com or call or email today to learn how your organization can offer this effective resource: (508) 854-0431 or jpmarosy@bringingeldercarehome.com

This newsletter may be reprinted in whole or in part so long as the author, John Paul Marosy, is credited and the Web site address, www.bringingeldercarehome.com, is provided.