Appendix D

Current Federal, State, and Local Policies to Support Family Caregivers

This appendix draws substantially from the research paper “Comprehensive Literature Review of Current and Promising Practices to Support Unpaid Caregivers in Science, Technology, Engineering, Mathematics, and Medicine (STEMM),” by Jessica Lee, J.D., Erin Frawley, M.Ed., and Sarah Stoller, Ph.D., which was commissioned for this study.¹

CAREGIVING LEAVE

Leave is a cornerstone of supporting family caregivers in science, technology, engineering, mathematics, and medicine (STEMM). Accessible leave—leave that caregivers can take without significant adverse career, educational, or financial repercussions—results in more equitable parenting throughout the lifespan and may ameliorate the negative impacts of caregiving on employee mental health and productivity (Heshmati et al., 2023).

FAMILY AND MEDICAL LEAVE ACT

The federal Family and Medical Leave Act (FMLA) requires covered employers to provide their eligible employees with unpaid, job-protected leave for up to 12 weeks in a 12-month period (U.S. Department of Labor, 1993). During the leave period, employers must continue to provide their employees with continued health insurance coverage. This law applies to all public institutions as well as private employers with more than 50 employees.

Employees eligible for FMLA leave must have worked at least 1,250 hours for the employer in the 12 months prior to the start of leave, must have worked for the employer for at least 12 months total, and must work

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¹ The full paper is available at https://nap.nationalacademies.org/resource/27416.

in a location with at least 50 employees in a 75-mile radius (U.S. Department of Labor, 1993). Eligible employees can use the leave for pregnancy, bonding with a newborn or newly adopted/placed child, or to care for a member of the employee’s immediate family with a serious health condition (“immediate family” is defined as child, spouse, employee’s own parent). The FMLA defines “serious health conditions” to include physical or mental health conditions requiring an overnight stay in hospital or similar facility; conditions that incapacitate the family member for more than 3 consecutive days and require ongoing medical treatment such as follow-up appointments and/or medication; chronic conditions that incapacitate and require treatment at least twice a year; or pregnancy.

The FMLA has special considerations for employee spouses working for the same employer. These employees are limited in the amount of time they can take for bonding with a newborn or newly adopted/placed child. Leave for child bonding is limited to 12 weeks total for dual-career employees at the same institution, while leave for one’s own pregnancy, health condition, or child’s health condition is not split. For example, if a faculty member takes 8 weeks of pregnancy FMLA leave and 4 weeks for baby bonding, those 4 weeks could be deducted from the 12 that her faculty spouse is eligible to use for baby bonding (U.S. Department of Labor, 2023).

To access this leave, employees should provide 30-day advanced notice when the need is foreseeable and offering notice is practicable. If the need for leave is not foreseeable, the employee should provide notice as soon as practicable. Employees may be required to fill out paperwork confirming their relative’s medical condition. Following the employee’s leave, they must be reinstated to their job or one that is nearly identical. Leave may be taken intermittently, but employers have a choice of whether to allow intermittent leave to bond with a newborn or newly placed child.

Finally, the FMLA prohibits employers from interfering with an employee’s ability to take leave or retaliating against them for taking leave. The law is enforced through the U.S. Department of Labor and private lawsuits.

STATE AND LOCAL LEAVE LAWS

At least 16 states provide their own job-protected leave for caregiving employees (National Conference of State Legislatures, 2015). These laws are typically very similar to the federal FMLA, though they often have expanded eligibility, such as by reducing employer size thresholds or the length of time

an employee must have worked to be eligible for leave. Twelve states and Washington, D.C., have a law requiring paid leave for new parents and family caregivers (A Better Balance, 2023). Several of these laws have been recently enacted and are not yet providing benefits. Notably, state paid family leave laws typically have caps on benefit amounts (e.g., no more than $900 a week) and as such are typically unable to fully replace a faculty member’s pay.

TITLE IX

Title IX of the Education Amendments of 1972 (Title IX) prohibits discrimination on the basis of sex and requires educational institutions to provide their students/trainees and employees with leave related to pregnancy.

Students and nonemployee trainees must be provided leave for pregnancy and related conditions (such as childbirth or miscarriage recovery) for as long as deemed medically necessary by the student’s health care provider. (U.S. Department of Education, n.d.) Following the student’s time away from studies, they must be returned to the same status they held prior to taking leave. To accomplish this, students may be entitled to make up work, a delayed finish for the semester, and/or automatic readmission.

Employees of educational institutions are also provided leave for pregnancy and related conditions. Employers must, at minimum, provide employees with leave without pay for a “reasonable time” when needed due to pregnancy, childbirth, and related conditions. Following this leave, the employee must be reinstated to the status they had prior to leave, or to a comparable position (“without decrease in rate of compensation or loss of promotional opportunities, or any other right or privilege of employment”) (U.S. Department of Education, n.d.) Title IX is enforced via internal Title IX compliance procedures, investigation, and sanction by the U.S. Department of Education, and through private lawsuits.

OTHER LEAVE REQUIRING LAWS

The Pregnant Workers Fairness Act (PWFA), discussed below, requires employers to provide reasonable accommodations, including leave for those affected by pregnancy and related conditions (Pregnant Workers Fairness Act, 2022). The Americans with Disabilities Act (ADA) also requires that employers provide leave, when needed, as a reasonable accommodation for people with disabilities, including pregnancy-related disabilities (Americans with

Disabilities Act, 1990). Finally, many states have their own laws providing benefits to public employees (National Conference of State Legislatures, 2015).

Maternity Accommodations

Pregnant and postpartum people often need accommodations at work or school to protect their health and ensure equitable access to employment or education. Commonly referred to as “reasonable accommodations” or “academic adjustments,” they can include changes such as new seating, changes to schedules, lactation breaks, personal protective equipment, and avoiding exposures to teratogens (Center for WorkLife Law, 2023).

PREGNANT WORKERS FAIRNESS ACT

The Pregnant Workers Fairness Act is a federal law that requires employers to provide their employees affected by pregnancy and related conditions with accommodations to how, where, or when their job is done. The PWFA went into effect in June 2023 and covers all public employers and those with at least 15 employees (Pregnant Workers Fairness Act, 2022).

Eligible employees are those who are affected by pregnancy and related conditions, such as pregnancy symptoms and complications; infertility; miscarriage, pregnancy loss, and abortion; childbirth and recovery; postpartum depression; and lactation. To access accommodations under this law, the employee is required to inform their employer of their pregnancy-related limitation. Then, the employer is obligated to offer an interactive process with the employee to determine a reasonable accommodation that would be responsive to the employee’s needs. Accommodations are considered reasonable when they do not pose an undue hardship such as added costs or difficulties to the employer in light of their resources.

PWFA prohibits employers from interfering with employees’ rights under this law, such as forcing employees to take leave when other options are available, or retaliating against an employee for needing accommodations or asserting their rights under the law. This law is enforced via the Equal Employment Opportunity Commission and private lawsuits.

PUMP ACT

The PUMP for Nursing Mothers Act (PUMP Act), a 2022 amendment to the Fair Labor Standards Act, covers employers of all sizes nationwide

(PUMP for Nursing Mothers Act, 2021). The PUMP Act requires employers to provide their employees with lactation breaks and a lactation space that is not a bathroom and that is free from view and intrusion. Under the law, employees are entitled to take lactation breaks of a reasonable length as often as needed. Employers with fewer than 50 employees total may seek an exemption in limited circumstances. There are no exemptions for larger employers.

The PUMP Act prohibits employers from interfering with employees’ rights under the law or retaliating against an employee for needing lactation accommodations or asserting their rights under the law. This law is enforced via the U.S. Department of Labor’s Wage and Hour Division and private lawsuits.

TITLE IX

Along with provisions for leave discussed earlier, Title IX also requires educational institutions to provide their students and nonemployee trainees with accommodations/academic adjustments when needed due to pregnancy and related conditions. Federal regulations state that pregnancy and related conditions such as termination of pregnancy and childbirth must be accommodated in the same manner that disabilities are accommodated (U.S. Department of Education, n.d.). The U.S. Department of Education has further clarified that, “to ensure a pregnant student’s access to its educational program, when necessary, a school must make adjustments to the regular program that are reasonable and responsive to the student’s temporary pregnancy status.”

A revised requirement to make adjustments for pregnant students was expected in October 2023 but still remains delayed. The most recently updated draft regulations from the U.S. Department of Education mandate that “[r]easonable modifications to the recipient’s policies, practices, or procedures for a student because of pregnancy or related conditions … [m]ust be provided on an individualized and voluntary basis” (Office for Civil Rights, Department of Education, 2022). The new regulations also clarify that students are entitled to lactation accommodations, as lactation is a pregnancy-related condition.

Employees limited by pregnancy and related conditions are also provided a right to accommodations under Title IX. Just as accommodations must be provided to employees with temporary disabilities, they must be provided to employees with pregnancy-related limitations (U.S.

Department of Education, n.d.). Such employees should be provided with reasonable accommodations and are entitled to other benefits or supports available to those with temporary disabilities.

Title IX coordinators are responsible for ensuring that these adjustments/accommodations are effectively implemented. Particularly relevant for STEMM, such adjustments may be required in any educational setting, including field work, laboratory and clinical settings, and externships overseen by the institution.

Anti-Discrimination Protections

State and Local Caregiver Antidiscrimination Laws

Over 200 states, cities, and counties have laws that prohibit discrimination on the basis of caregiver status or family responsibilities for over 50 million employees in the United States (Center for WorkLife Law, 2022). The laws vary in scope, but most prohibit employers from taking adverse employment actions against an employee based on their caregiver status. Some laws cover only parents, or caregivers of immediate family, while others are broader. As of late 2022, six states have these protections for private and public employees; Alaska (protecting parents, Alaska Stat. Ann. §18.80.220); Connecticut (prohibiting inquiries about familial responsibilities, Conn. Gen. Stat. §46A-60(9)); Delaware (protecting family caregivers, as defined by the FMLA, 19 Del. Code §711 (K); Maine (prohibiting familial status discrimination and inquires, 5 M.R.S. §4572); Minnesota (prohibiting discrimination against those living with minors and related inquires, Minn. Stat. §363A.08); and New York (prohibiting discrimination against parents and those living with children, N.Y. Exec. Law §296).

TITLE VII

Title VII of the Civil Rights Act of 1964 (Title VII) is a federal law that prohibits employers with 15 or more employees from discriminating on the basis of sex, race, color, national origin, and religion (Title VII of the Civil Rights Act of 1964, 1964). Under this law, it is illegal for employers to take negative employment actions that are based on an employee’s or job applicant’s sex, race, color, national origin, or religion.

Discrimination against caregivers is not directly prohibited by Title VII, but caregiver discrimination often comes in the form of sex or race

discrimination banned by Title VII. This typically occurs when employers take adverse actions against their employees based on stereotypes or unfounded beliefs about how caregivers of a certain sex or race will act or should act. For example, an employer could violate Title VII by choosing to fire a man who takes time off to care for his ailing parent, based on the belief that men should prioritize work over family care.

Similarly, an employer may violate Title VII by declining to promote or provide opportunities to a mother because of the stereotype that mothers do not want to work long hours or travel. Pregnancy-related bias is also actionable as a form of sex discrimination under Title VII (Pregnancy Discrimination Act of 1978, 1978). This includes failing to accommodate pregnant employees as they would other employees similar in their ability or inability to work (U.S. Supreme Court, 2015).

Discrimination against caregivers can also be based on racial discrimination, which is also illegal under Title VII. Employers may violate the law by treating some caregivers worse based on their race, or making employment decisions based on stereotypes about how a caregiver of a certain race will or ought to behave. For example, it is illegal to allow a White woman to arrive late to work because of childcare issues but discipline a Black woman for doing the same. Cynthia Thomas Calvert found that 8 percent of cases brought against employers for family responsibilities discrimination also alleged racial discrimination, and 2 percent alleged national origin discrimination (Calvert, 2016).

TITLE IX

Title IX prohibits discrimination and harassment on the basis of sex, generally. To that end, it is illegal to treat workers or students experiencing pregnancy less favorably than others, whether doing so is intentionally malicious or not. It is also illegal to base employment or admission decisions on someone’s family or marital status. Title IX’s prohibition of sex discrimination also requires educational institutions to provide comparable benefits regardless of sex; it would be illegal to provide baby-bonding leave to a student mother but not to a father.

AMERICANS WITH DISABILITIES ACT

The Americans with Disabilities Act prohibits discrimination based on disability for all employers with 15 or more employees (Americans with

Disabilities Act, 1990). Caregivers may be entitled to accommodation and antidiscrimination protection for their own disabilities, particularly pregnant students or employees experiencing complications. Notably, the ADA also prohibits “associational” discrimination, which is discrimination based on an employee’s affiliation or relationship with a person with a disability, whether an immediate family member or not. For example, an employer may break this law after rescinding a job offer to an employee on learning their child has a disability, based on the belief they will be less available and committed to the job. Or an employer may violate the law by refusing to allow an employee to take time off to care for a disabled relative, while allowing other employees to take time off for other reasons. The ADA also prohibits harassment based on an employee’s association with a person with a disability.

REFERENCES

Americans with Disabilities Act, 42 U.S.C. 12101. (1990). https://www.ada.gov/law-and-regs/ada/

A Better Balance. (2023). Comparative Chart of Paid Family and Medical Leave Laws in the United States. https://www.abetterbalance.org/resources/paid-family-leave-laws-chart/

Calvert, C. (2016). Caregivers in the Workplace: Family Responsibilities Discrimination Litigation Update 2016. Center for WorkLife Law, UC Hastings College of the Law. https://doi.org/10.13140/RG.2.2.26004.73608

Center for WorkLife Law, UC Hastings Law. (2022). Laws Protecting Family Caregivers at Work. https://worklifelaw.org/wp-content/uploads/2022/11/FRD-Law-Table.pdf

Center for WorkLife Law, UC College of the Law. (2023). Pregnancy, Childbirth, and Related Medical Conditions: Common Workplace Limitations and Reasonable Accommodations Explained. San Francisco. https://pregnantatwork.org/wp-content/uploads/Workable-Accommodation-Ideas.pdf

Heshmati, A., H. Honkaniemi, & S. P. Juárez. (2023). The effect of parental leave on parents’ mental health: A systematic review. The Lancet 8(1):e57–e75. https://doi.org/10.1016/S2468-2667(22)00311-5

National Conference of State Legislatures. (2015). State Employment-Related Discrimination Statutes. https://vawnet.org/material/state-employment-related-discrimination-statutes

Office for Civil Rights, Department of Education. (2022). Notice of Proposed Rulemaking: Nondiscriminaiton on the Basis of Sex in Education Programs or Activites Receiving Federal Financial Assistance. Federal Register 87(132)

Pregnancy Discrimination Act of 1978, P.L. No. 95-555. (1978). https://www.eeoc.gov/statutes/pregnancy-discrimination-act-1978

Pregnant Workers Fairness Act, 31 U.S.C. 1115(2022). https://www.congress.gov/congressional-record/volume-168/issue-198/senate-section/article/S9631-1

PUMP for Nursing Mothers Act. Public Law 117-328 § KK 2022. https://www.congress.gov/117/plaws/publ328/PLAW-117publ328.pdf

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (1964). https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964

U.S. Department of Education. n.d. Title IX of the Education Amendments of 1972. In 20

U.S.C. §1681–1688. https://www.govinfo.gov/content/pkg/USCODE-2022-title20/pdf/USCODE-2022-title20-chap38-sec1681.pdf

U.S. Department of Labor. (1993). The Family and Medical Leave Act of 1993. https://www.dol.gov/agencies/whd/laws-and-regulations/laws/fmla

U.S. Department of Labor. (2023). Fact Sheet #28P: Taking leave from work when you or your family member has a serious health condition under the FMLA. https://www.dol.gov/agencies/whd/fact-sheets/28p-taking-leave-when-you-or-family-has-healthcondition

U.S. Supreme Court. (2015). Young v. United Parcel Service, Inc. https://supreme.justia.com/cases/federal/us/575/206/

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