Sarah Pierce Wimberly (equity partner) of global employment law firm alliance Ius Laboris’ U.S. member firm FordHarrison LLP, with James Davies (partner) and Pia Sanchez (associate) of UK member firm Lewis Silkin, analyse the growing need to address dementia in the workplace.
The growing occurrence of dementia is morphing from a health care issue into a workplace challenge. Roughly 19 million Americans have a family member who suffers from dementia. While an estimated 5 million Americans currently suffer from dementia, that number is expected to increase to at least 14 million by 2040. Similarly, currently there are around 800,000 dementia sufferers in the UK, and that number is likely to double by 2040.
Compounding the problem, dementia has a disproportionate impact on women as compared to men. Women are twice as likely to develop the disease, and substantially more women provide care to dementia patients.
Thus, as the rate of dementia increases, employers will face increasingly complex issues in dealing with employees who are affected by it either as patients or caregivers.
In almost all U.S. industries, there is no mandatory retirement age, and employees cannot be compelled to retire. Most Americans are retiring later and working well past previously normalized retirement ages. Age discrimination laws generally prevent employers from even suggesting that it is time for an older employee to retire. In the UK, before 2011, employers could retire employees upon reaching the Default Retirement Age (DRA) of 65 without risk of discrimination. The abolition of the DRA now makes it harder to retire older employees. The impact of this — and a global financial crisis reducing pensions for many — means more older workers in the UK continue working.
Those employees working with dementia are protected under the law. Dementia is a disability under both U.S. and UK discrimination law, making it unlawful for employers to treat these employees differently simply because of their condition. This protection also requires employers to make reasonable accommodations or adjustments to help disabled employees overcome any workplace challenges related to their disability. “Reasonableness” depends on the specific circumstances, but may include changing an employee’s work pattern and/or allowing time off for medical appointments.
This does not mean that employers cannot address the performance issues that may be caused by the disease. Employees with disabilities such as dementia can be held to the same performance standards as other nondisabled employees. When performance is impacted, employers should focus on the deficiencies and not on a confirmed or suspected diagnosis of dementia. Although employers must provide disabled employees with a reasonable and effective accommodation, the accommodation must simply enable them to perform at the same level as nondisabled employees. By focusing on performance and not the condition, employers can avoid claims of disability discrimination and also, indirectly, companion claims of age discrimination.
A typical accommodation an employee suffering from dementia may request is time off to seek medical treatment. The federal Family and Medical Leave Act (FMLA) permits eligible employees (essentially those who have been employed for one year on a full-time basis) to take up to 12 weeks of time off, either continuously or intermittently, every 12 months for episodes or treatment of permanent or long-term conditions such as dementia. Many states have similar leave laws, which may provide greater protections for employees. These laws effectively operate to protect employees’ jobs while they are away from the workplace on covered leave.
All UK employees with at least 26 weeks of continuous service have the right to request flexible working. It is not a right to work flexibly, simply a right to request to do so. Employers must deal with a flexible working request in a reasonable manner and may only refuse it if there are business reasons for doing so. Given the potential for competing requests from employees with different needs (e.g. childcare, lifestyle, or medical reasons), it is important to discuss with employees their particular circumstances. One option is to deal with requests on a first-come, first-served basis to avoid perceived favoritism and a potential discrimination claim.
In large part these same laws protect employees who are caregivers to a dementia patient. US law prohibits discriminating against those who are associated with a disabled individual. Discrimination claims can be based upon higher insurance costs, greater need for time off, or perceived distraction from work. Employees who perceive they are being treated differently on this basis have a potential claim. These claims are rare, and there is not much interpretive case law to guide an employer’s best practices. Employers are not, however, required to reasonably accommodate employees who are merely associated with a disabled individual.
Associative discrimination is also prohibited by UK legislation. Employers there also have to be wary of discrimination claims based on the protected characteristic of someone an employee associates with. So if the flexible working requests of parents with school children were favored over someone who needed to attend medical appointments with their dementia-suffering older parent, there may be an age discrimination issue, a disability discrimination issue, or both.
Although U.S. law does not require employers to reasonably accommodate employees associated with disabled individuals, these employees are entitled to take “family leave.” The FMLA authorizes eligible employees to take up to 12 weeks off work, either continuously or intermittently, in a 12-month period to care for a parent with a serious health condition such as dementia. Caring for a parent may include driving a parent to medical appointments, providing daily care, or simply providing psychological support. In the UK, employers have similar requirements. All employees have the right to “dependants leave,” unpaid time off for care givers to deal with emergencies of their dependents.
These issues are only going to become more prevalent. The first step in preparing is understanding the legal requirements and implementing policies that comply with these requirements.