Last month, the Equal Employment Opportunity Commission issued guidance titled “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws.”
While the title of guidance focuses on the pandemic, caregiver discrimination can be much broader than those arising due to COVID-19.
No federal discrimination law protects an employee’s right to engage in caregiving of others, and thus employees do not generally have a general right to reasonable accommodation to handle caregiving duties.
Employees in Virginia who work for an employer that employs six or more employees have a right to reasonable accommodation for their own disability or pregnancy, but not to care for others.
Employees may be entitled to leave to care for others under the more restricted Family Medical Leave Act, which provides for unpaid leave of up to 12 workweeks for certain documented medical reasons for the employee, or to care for the employee’s spouse, child or parent.
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This law is more restricted because the organization where the employee works must employ at least 50 or more employees within a 75-mile radius and the employee must have worked for the organization at least one year, worked 1,250 hours in the preceding 12 months, and leave can only be taken for certain limited reasons.
Apart from rights under the FMLA, an employer discriminates against an employee if it treats employees who need to be a caregiver disparately and based on a protected characteristic such as gender, race, sexual orientation or age. Many times the discrimination results from stereotypes and assumptions about caregiving responsibilities.
For example, if an employer refuses to hire or promote a female based on assumptions that, because she is 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, the employer has engaged in unlawful discrimination.
Employers also may not penalize female employees more harshly than similarly situated male employees for absences or missed deadlines due to pandemic-related or other caregiving duties.
Sometimes employers make seemingly well-intentioned employment decisions, such as declining to assign female caregivers to demanding or high-profile projects that might require overtime or travel, and this can also violate federal law.
It is equally unlawful to discriminate against male caregivers based on gender-based stereotypes, including based on assumptions that men are breadwinners and women are caretakers.
The guidance explains, “It would be unlawful for an employer to deny 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. It also would be unlawful, for example, for an employer to refuse requests for exceptions from return-to-work policies or attendance policies made by men with caregiving responsibilities, based on their gender.”
Employers also must not treat LGBTQI+ applicants or employees differently or more burdensome as it relates to caregiving, including any requirement of “proof” of marital or other family relationship with the individual needing care, if such requirements are not imposed on other employees who make such requests.
It would also be unlawful to unilaterally require pregnant workers to telework or adjust their schedules to keep them safe, “even if they are made for purportedly benevolent reasons,” the EEOC explains.
Employers should be consistent in providing leave to recover from COVID-19. If leave is provided, for example, to a Black female, it should similarly be provided to a white male who needs the same accommodation.
As for older workers, however, the EEOC notes that “employers may, at their discretion, grant older workers’ requests for leave, flexible schedules, telework, or other arrangements to enable them to perform pandemic-related caregiving duties. The ADEA does not prohibit employers from treating older workers more favorably than younger workers because of the older workers’ age, although some state laws may not allow age-based favoritism of older workers.”
Consistent with all federal and state discrimination laws, employers are not required to excuse poor performance resulting from caregiving responsibilities. An employer, for example, can discipline an employee who is repeatedly tardy even if those attendance infractions are due to pandemic-related caregiving obligations, so long as the employee treats other similar situations equally.
Employers should implement policies around leave and attendance, and be consistent in accountability of those expectations. Employers also should provide training and guidance to managers around implicit bias and stereotypes that too often infiltrate decision-making in organizations.
Karen Michael is an attorney and president of Richmond-based KarenMichael PLC and author of “Stay Hired.” She can be reached at [email protected]