Page 89 - An Indispensible Resource for Being a Credible Activist

Your FMLA policy may allow these 12 weeks by calendar year or by rolling year. This
means that if you allow 12 weeks per calendar year and you have an employee who begins
an FMLA leave on November 1 and is out on FMLA for all of November and all of December,
that employee has not used up the entire 12 weeks. If that employee continues to be out
after January 1 of the following year, your calendar year policy now allows that employee
to be out another full 12 weeks as of January 1. If your FMLA policy only allows for FMLA
on a rolling-year basis, that employee would only have FMLA leave for the remaining
unused time of a maximum of 12 weeks from when the employee’s FMLA leave began on
November 1 of the previous year.
Your company’s FMLA policy may or may not require employees to use their paid time
off concurrently with the use of their FMLA. There are also protections for certain caregivers
under FMLA. See the following page for information on this from the EEOC.
The FMLA was recently changed to include the Final Regulations, which implement
two important new military family leave entitlements for eligible specified family members:
1. Up to 12 weeks of leave for certain qualifying exigencies arising out of a covered
military member’s active-duty status, or notification of an impending call or order to
active-duty status, in support of a contingency operation, and
2. Up to 26 weeks of leave in a single 12-month period to care for a covered service
member recovering from a serious injury or illness incurred in the line of duty on
active duty. Eligible employees are entitled to a combined total of up to 26 weeks of
all types of FMLA leave during the single 12-month period. The Final Regulations
became effective on January 16, 2009.

❱❱ EEO AND CAREGIVERS

The EEOC has issued a document entitled “Enforcement Guidance: Unlawful Disparate
Treatment of Workers with Caregiving Responsibilities.” This document illustrates circum-
stances under which discrimination against a working parent or other caregiver constitutes
unlawful disparate treatment under the federal EEO statutes.
Changing workplace demographics, including women’s increased participation in the
labor force, have created the potential for greater discrimination against working parents
and others with caregiving responsibilities. The new guidance is intended to assist employ-
ers, employees, and Commission staff in determining whether discrimination against per-
sons with caregiving responsibilities constitutes unlawful disparate treatment under federal
EEO law.
The federal EEO statutes do not prohibit discrimination based solely on parental or
other caregiver status. Under the federal EEO laws, discrimination must be based on a pro-
tected characteristic such as sex or race. However, some state or local laws may provide
broader protections for caregivers. A particular caregiver also may have certain rights under
other federal laws, including the Family and Medical Leave Act.
Unlawful disparate treatment arises where a worker with caregiving responsibilities is
subjected to discrimination based on a protected characteristic under federal EEO law.
Generally, this means that, under Title VII of the Civil Rights Act of 1964, unlawful disparate
treatment arises where a caregiver is subjected to discrimination based on sex and/or race.

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