Yesterday, the U.S. Equal Employment Opportunity Commission shared new guidance for employers to avoid caregiver discrimination issues for employees with caregiver responsibilities during the COVID-19 pandemic. The EEOC included a new section on caregivers/family responsibilities in its ongoing COVID-19 FAQ, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other “EO Laws.” There’s even a new short video explaining caregiver discrimination in English and Spanish.
The EEOC has a clear message for employers when employees need time away from the office to care for others.
Employers may not discriminate against employees with caregiving responsibilities based on any protected class. Often, this occurs when employers succumb to gender stereotypes. Here are a few examples from the new guidance:
- “Employers may not decline to assign female employees with caregiving responsibilities demanding or high-profile projects that increase employees’ advancement potential but require significant overtime or travel.”
- “Likewise, employers may not reassign such projects to other employees based on assumptions that female caregivers cannot, should not, or would not want to work extra hours or be away from their families if a family member is infected with or exposed to COVID-19.”
- Employers also may not deny male employees permission to telework or to adjust their schedules to enable them to perform pandemic-related caregiving obligations, such as caring for young children or parents, while granting such requests when made by similarly situated female employees.
LGBTQ+ bias can also lead to unlawful stereotyping in caregiver consider situations, such as requiring proof of a marital or other family relationship with the individual needing care, if companies do not impose such requirements on other employees who make such requests.
Similarly, an employer cannot discriminate against an applicant or employee because of that person’s association with an individual with a disability. That could include caring for someone with COVID-19 or lingering symptoms (i.e., long COVID). Title VII protects these employees from discrimination based on their association with the care recipient. Here’s an example from the new EEOC guidance:
- It would be unlawful under the Americans with Disabilities Act (or Rehabilitation Act) for an employer to refuse an employee’s request for unpaid leave to care for a parent with long COVID that is a disability under those laws while approving other employees’ requests for unpaid leave to handle different personal responsibilities. Depending on the circumstances, this also may violate the Family and Medical Leave Act enforced by the Department of Labor or similar state or local laws.
- It also would be unlawful, for example, for an employer to refuse 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 the employee’s caregiving obligations for a child with a disability.
- And it would be unlawful, for example, for an employer to decline to hire an applicant because her wife has a disability that puts the applicant’s wife at higher risk of severe illness from COVID-19, and the employer fears that its health insurance costs will increase if the applicant’s wife is added to its healthcare plan. Alternatively, if this applicant is hired, it would be unlawful for the employer to refuse to add her wife to the organization’s healthcare plan because of her wife’s disability.
However, the ADA does not require an employer to accommodate an employee (disabled or not) because they need to care for someone else with a disability. Although, employers must treat employees who cannot perform their job duties because of pregnancy, childbirth, or related medical conditions the same as other employees who are temporarily unable to perform job duties. And these employees may have FMLA rights as well.
Other Employer Resources.
There’s plenty more to the new guidance than I can fit into a manageable blog post. Plus, the EEOC has some pre-existing resources that you’ll want to review too: