Last night, my four-month-old little boy came down with a cold. I was up with him all night – all night. It’s just a minor cold though. He’s otherwise very healthy. Having handled so many Cleveland-area employment discrimination cases, I know not every working parent is so lucky when it comes to the health of their children.
Consider your typical employee in, say, Lorain County. Based on recent data, she probably works either in manufacturing, the healthcare field, or for a local government. She may or may not be in a union, and has only a few days of annual sick leave. If her child has a serious medical issue, she faces a terrible dilemma: she needs to miss work to care for her child, but she risks getting fired if she does. Fortunately, Ohio and federal law provide some protections for employees facing this difficult situation.
The Family and Medical Leave Act, or FMLA, is the first place our Lorain County employee with a sick child should look. The FMLA provides unpaid, but job-protected, leave for eligible employees in order to care for a child with a “serious medical condition.” The FMLA has its limits however. It does not cover things like a run-of-the-mill cold. It only allows twelve weeks of leave over a given twelve-month period. And, it does not cover employees who haven’t worked for the employer for at least a year, or those whose employers have less than fifty employees within seventy-five miles. So if our typical Lorain County employee doesn’t qualify for FMLA protection, she has to look elsewhere.
The federal and Ohio disability discrimination laws can provide some protection to employees with seriously ill children. These laws protect not only employees with disabilities, but those who are closely associated with an individual who has a disability, a notion called “associational discrimination.” This protection would apply to a parent-child relationship, and under certain circumstances, might entitle an Ohio employee to take medical leave to care for a child with a disability. Although indefinite leave is not required, the disability discrimination laws are a potentially critical protection for our Lorain County employee.
Another legal protection for employees with sick children is a frequently overlooked one, even by experienced employment law attorneys. Section 510 of the Employee Retirement Income Security Act (“ERISA”) prohibits employers from firing employees in order to avoid their insurance costs on an employer-provided health insurance plan. In the situation presented here, if our Lorain County employee and her child were on the company group health plan, ERISA Section 510 would prohibit the employer from firing her because the child’s insurance premiums are high. We’ve previously written about ERISA Section 510 in more detail, which you can find here.
Nobody should have to choose between caring for their sick child and their job. Luckily, there are some laws that may help employees in Lorain County, and elsewhere in Ohio, not have to make that choice.