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The EEOC’s New COVID-19 Caregiver Discrimination Guidance

by Jennifer Shaw | | March 21, 2022

Yes. More COVID-19 developments.

On March 14, 2022, the federal EEOC released new guidance related to COVID-19 caregiver discrimination, “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws.” As part of the guidance, there is a new caregiver section in the EEOC’s regularly updated COVID-19 FAQs, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” and an EEO-issued “best practices” summary.

These documents are super helpful, even for California employers (many of whom must provide COVID-19 supplemental sick leave).

You want the Cliff Note’s version? Do the right thing, and don’t stereotype your employees. If you have a few more minutes, read on…

Here are some key points from the EEOC’s new guidance:

1. To be unlawful, caregiver discrimination must be 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); the applicant’s or employee’s association with an individual with a disability; or the race, ethnicity, or other protected characteristic of the individual for whom care is provided.

2. “Unlawful discrimination based on female workers’ caregiving may arise in a variety of ways, often connected to gender-based stereotypes about caregiving responsibilities or roles. For example, 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. Employers also may not penalize female employees more harshly than similarly situated male employees for absences or missed deadlines due to pandemic-related caregiving duties.” In addition, “employers may not base employment decisions on gender stereotypes, even if those decisions are well-intentioned. For example, employers may not decline to assign female caregivers demanding or high-profile projects that increase employees’ advancement potential but require overtime or travel, or reassign such projects from female caregivers, based on employers’ assumptions that such actions will make it easier for female employees to juggle work and personal obligations, or based on the belief that female caregivers cannot or would prefer not to work extra hours or be away from their families if a family member is infected with or exposed to COVID-19.”

3. “It is unlawful for employers to discriminate against male caregivers based on their gender or based on gender stereotypes of men as breadwinners and women as caretakers. For example, 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.”

4. “It is unlawful for employers to discriminate against LGBTQI+ applicants and employees with caregiving responsibilities based on their sexual orientation or gender identity. For example, employers may not impose more burdensome procedures on LGBTQI+ employees who make caregiver-related requests, such as requiring proof of a marital or other family relationship with the individual needing care, if such requirements are not imposed on other employees who make such requests. Employers also may not, for example, deny caregiving leave to an employee with a same-sex partner based on the sexual orientation or gender identity of the employee or the employee’s partner.”

5. Employees generally do not have a right under federal employment discrimination laws to reasonable accommodations such as telework, flexible schedules, or reduced travel or overtime because they are caregivers. However, employees who are unable to perform their job duties because of pregnancy, childbirth, or related medical conditions must be treated the same as other employees who are temporarily unable to perform job duties. (But, do not forget about the FMLA and other laws.)

6. Pregnancy discrimination related to the pandemic may arise in a variety of ways. “For example, it would be unlawful for an employer to refuse to hire pregnant applicants, or to demote or refuse to promote pregnant employees, based on assumptions that these individuals will or should be primarily focused on ensuring safe and healthy pregnancies. It also would be unlawful, for instance, for an employer to allow employees to routinely harass their pregnant co-workers for maintaining a physical distance from colleagues, changing their schedules, teleworking, or taking other actions to avoid being exposed to or infected with COVID-19.” Pregnant employees also may have a right to accommodations in certain circumstances.

7. “Under Title VII, if employers provide light duty, modified assignments or work schedules, or leave to employees who are temporarily unable to perform job duties, they must provide these options to employees who are temporarily unable to perform job duties because of pregnancy, childbirth, or a related medical condition. For example, if employees who have severe fatigue, difficulty breathing, or headaches due to COVID-19 are granted leave to recover and/or light duty when they return to work, employers must provide these options to employees who are temporarily unable to work or to perform some job duties because of pregnancy, childbirth, or a related medical condition.” (I realize that your workers’ compensation carrier likely gave you contrary advice. Don’t shop for apples at the butcher.)

There is so much more to discuss. Tune in for our “Workplace Wake-Up with Jen Shaw” podcast on March 30 for a detailed discussion of this important new development.

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