According to recent studies, approximately 63 million American adults are family caregivers representing 1 in 4 of all U.S. adults. Many family caregivers (60-70%) who care for a sick or disabled family member are employed, translating into tens of millions of U.S. employees balancing jobs with caregiver responsibilities. It is not uncommon for an employee in this situation to request FMLA medical leave care for a sick or disabled family member, whether it is a few hours at a time to go to a doctor’s appointment or stretches into weeks to provide critical care. Unfortunately, all too often the responsibility of caring for a family member can make the employee a target of workplace discrimination and retaliation for having to take time off.
Workplace Retaliation Under ADA and FMLA
Disability prevalence has generally risen since 2021, with soaring cancer rates, Covid-19 and long Covid, as major contributing factors. Not surprisingly, employees often have to manage both their jobs and caregiver responsibilities simultaneously – sometimes at the risk of losing their employment because they are viewed as a liability due to their association with a disabled family member or when medical leave becomes necessary. However, it is important to note that employers who take adverse employment actions against employees in caregiver roles, including termination decisions involving employees who are caregivers for people with disabilities or employees who take FMLA leave to care for a sick or disabled family member run the risk of violating federal laws including the Americans with Disabilities Act and the Family and Medical Leave Act.
Potential ADA Violations Related to an Employees Caregiver Role
The ADA prohibits discrimination against an employee on the basis of a relationship or association with someone who has a disability. In real-world work life, association discrimination under the ADA often plays out subtly through stereotypes and assumptions rather than overt statements. Employers (or managers) might assume that someone caring for a disabled family member will be unreliable, frequently absent, distracted, or less committed—leading to being passed over for promotions, scrutinized more heavily on performance, or eventually terminated. Possible scenarios include:
- A manager notices an employee arriving tired or mentions their child’s disability in meetings and starts questioning the employee’s “focus” or “availability.”
- Performance reviews suddenly highlight minor issues or rate an employee lower after their caregiver role becomes known, even if metrics were previously fine.
- An employee is excluded from projects requiring travel or extra hours with vague references to “family commitments.”
- Colleagues or supervisors make comments implying the employee “has a lot on their plate” or can’t “handle the demands.”
These assumptions violate the ADA’s association provision, which prohibits treating employees less favorably based on unfounded stereotypes about caregiving for a disabled relative (child, spouse, parent, etc.). Note that the ADA does not require employers to provide reasonable accommodations (like flexible hours) solely for caregivers—unlike for the person with the disability themselves. However, it does ban discrimination based on the association.
FMLA Violations
FMLA (Family and Medical Leave Act) is a federal law that provides eligible employees with up to 12 weeks of unpaid, job-protected leave in a 12-month period for specific family and medical reasons. An employee may use FMLA leave to care for a spouse, child (under 18 or adult child incapable of self-care due to disability), or parent who has a serious health condition. This includes chronic conditions, conditions requiring ongoing treatment, or periods of incapacity (e.g., unable to perform daily activities due to illness, treatment, or recovery) and may include providing physical assistance (e.g., help with daily needs, transportation to medical appointments), psychological comfort and support, or handling arrangements for care. Leave can be taken continuously (e.g., full weeks off) or intermittently (e.g., reduced hours, occasional days) as medically necessary.
Key Protections under FMLA when caring for a disabled family member:
Job Protection – An employee must be restored to the same or an equivalent position with equivalent pay, benefits, and terms upon return from leave.
Health Benefits – Continued coverage during leave.
No Retaliation or Interference – Employers cannot deny, discourage, or interfere with your FMLA rights, punish you for taking leave, or use FMLA leave as a negative factor in evaluations, promotions, or discipline. This includes protection against retaliation for requesting or using leave. An employee cannot be fired or demoted for exercising these rights.
FMLA prevents an employer from taking adverse employment actions against an employee who takes medical leave to care for a disabled family member, allowing protected time off when it is needed. If an employee is retaliated against in their workplace – including termination – after requesting or using FMLA leave to care for a family member the employer may be in violation of the law.
Consult an Experienced Employment Law Attorney for Help
Cases involving wrongful termination tied to FMLA leave for caregiving or ADA association discrimination (being treated worse due to your role as a caregiver for a disabled family member), an employment attorney can pursue several types of damages and remedies, with outcomes depending on the specifics of your case. Common remedies and damages may include back pay and lost wages; front pay; reinstatement; compensatory damages and punitive damages in some cases. Contact the employment law attorneys of Alan C. Olson and Associates or immediate assistance at 262-785-9606.
