Even as the response to the COVID-19 pandemic seems to ease, we all know that new and different pandemic-related caregiver responsibilities continue in various forms.  Employers still struggle with issues related to employees’ obligations in this regard, such as an employee who must care for a family member who has contracted the coronavirus or who must quarantine unexpectedly; changes in children’s childcare or school circumstances that have become permanent; or caregiving responsibilities for older relatives or individuals with disabilities.  Such issues may result in employees requesting flexibility in the form of modified job duties or work schedules, remote work, or extended periods of leave.

Last week, the Equal Employment Opportunity Commission (EEOC) issued new guidance for employers aimed at preventing unlawful discrimination against individuals who have caregiver responsibilities related to the pandemic.  As the guidance reminds us all, even well-intentioned decisions can potentially cause employers to run afoul of the law. 

What does the law require?

As a threshold matter, federal equal employment laws such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) do not explicitly cover individuals based on their status as caregivers.  However, “caregiver discrimination” can occur when related decisions are based on:

• An applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age (40 or older), disability, or genetic information (such as family medical history);

• An applicant’s or employee’s association with an individual with a disability, within the meaning of the ADA, or on the race, ethnicity, or other protected characteristic of the individual for whom care is provided; or

• Intersections between these characteristics (g., discrimination against Black female caregivers based on racial and gender stereotypes, or discrimination against Christian female caregivers based on religious and gender stereotypes).

When considering potential caregiver discrimination, recognize that, in general, employees do not have a right under federal employment discrimination laws to reasonable accommodations such as telework, flexible schedules, or reduced travel or overtime simply because they are caregivers.  However, employees with caregiving responsibilities may have rights under other laws, such as the right to leave for covered caregiving purposes under the Family and Medical Leave Act or similar state or local laws.  Nor are employers required to excuse poor performance resulting from employees’ caregiving duties.

In practice, employers are most likely to engage in prohibited caregiver discrimination when they act on assumptions or stereotypes or apply policies unevenly based on protected traits.  The EEOC’s new guidance provides many examples of what may or may not lead to caregiver discrimination. 

Examples of Caregiver Discrimination Provided by the EEOC:

According to the EEOC, employers may engage in unlawful caregiver discrimination if they take action similar to the following examples:

• Declining to assign high-profile or demanding projects that would increase advancement potential but require overtime or travel to female caregiver (or reassigning such projects from female caregivers) based on gender stereotypes that a female caregiver might face more difficulty juggling work and personal obligations, or that they should not or would not want to undertake additional work if a family member were to contract COVID-19;

• Denying men leave or permission to work a flexible schedule to care for a family member with COVID-19 or to handle other pandemic-related caregiving duties if the employer grants such requests when made by similarly situated women;

• Declining to hire an applicant because his wife has a disability that puts the applicant’s wife at higher risk of severe illness from COVID-19 because the employer fears that its health insurance costs will increase if the wife is added to its healthcare plan;

• Refusing to promote an employee who is the primary caregiver of a child with a mental health disability that worsened during the pandemic based on the employer’s assumption that the employee would not be fully available to colleagues and clients, or committed to the job, because of caregiving obligations for the child;

• Refusing to hire pregnant applicants, or demoting or refusing to promote pregnant employees, based on assumptions that these individuals will or should be primarily focused on ensuring safe and healthy pregnancies; or, similarly, unilaterally requiring pregnant employees to work remotely to limit contact with others for safety purposes; 

• Basing employment decisions on assumptions that older employees with caregiving responsibilities need special treatment due to age-related stereotypes; g., if an older employee is caring for a grandchild while the child’s parent recovers from COVID-19, it would be unlawful for the employer to require the employee to accept a reduced schedule out of concern that, because of the employee’s age, the employee lacks the stamina to perform full-time job duties effectively while also caring for a young child. 

What should employers do now?

Employers should use the EEOC’s new guidance as a road map for handling situations involving employees facing COVID-19-related caregiving duties, recognizing that the commission may be increasing its focus on caregiver-related claims.  Ensure that workplace policies and practices support employees and applicants who have caregiving responsibilities, without taking into account employees’ protected characteristics, and always apply policies consistently.  Also keep in mind obligations to provide reasonable accommodations to employees with disabilities under the ADA, as well as any other laws that might provide employees with protections.  Train human resources personnel and managers on best practices, and investigate and address any received complaints.