As we enter the third year of a pandemic, the ongoing disruption caused by COVID-19 and its variants often leaves employers juggling legal and business considerations regarding their workforce. Specifically, many employees are also caregivers — whether they are caring for children, a spouse, an individual with a disability or older relatives. Practically, issues arise when facilities such as schools, daycares or nursing homes have quarantine or closure requirements that directly conflict with an employer’s quarantine or remote-work policy.
The U.S. Equal Employment Opportunity Commission has released a technical assistance document, “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law.” It also has released an update to its COVID-19 questions and answers series, explaining discrimination against employees and job seekers with family caregiving responsibilities.
What employers should know about caregiver discrimination
Employers will benefit by understanding two things: first, what federal employment discrimination laws may be implicated as it relates
to caregivers and second, how an employer’s policies can be drafted such that caregivers and caregiving responsibilities are addressed.
Caregiver discrimination violates federal employment discrimination laws when it is based on an applicant’s or employee’s sex, race, color, religion, national origin, age, disability or genetic information. It is important to note that “caregiver” is not a protected characteristic. Federal employment discrimination laws do not prohibit employment discrimination based solely on caregiver status. State or local laws may provide greater protection for caregivers.
Examples of legal violations from the EEOC
The EEOC’s technical assistance document provides multiple examples of potential legal violations related to caregivers. A few of them are as follows:
- It would violate the law if an employer refused to hire a female applicant or refused to promote a female employee based on assumptions that, because she was female, she would (or should) focus primarily on caring for her young children while they attend school remotely, or on caring for her parents or other adult relatives.
- It would be unlawful under the ADA (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 other personal responsibilities.
- If an older worker is caring for a grandchild while the child’s parent recovers from COVID-19, it would be unlawful for the worker’s employer to require the worker to accept a reduced schedule out of concern that, because of the worker’s age, the worker lacks the stamina to perform full-time job duties effectively while also caring for a young child.
It is a good time to revisit your company’s EEO policy and update the document in accordance with EEOC best practices. Specifically, is the term “caregiver” defined? Does your policy describe ways in which common stereotypes may lead to unlawful conduct against caregivers? As always, it is essential to work with counsel to develop a comprehensive EEO policy that is updated regularly in accordance with regulatory guidance.