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As the number of employees requesting flexible work arrangements increases, the Equal Employment Opportunity Commission (EEOC) has released a new technical assistance document, “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law.
The new EEOC guidance highlights potential issues and scenarios that could lead to discrimination claims based on caregiver responsibilities, and it offers important reminders for employers dealing with employees’ flexible work requests.
The COVID-19 pandemic has significantly impacted employees’ work and personal obligations, creating concurrent and, at times, competing job and caregiving demands. Abrupt changes in work locations, schedules, or employment status required millions of Americans with caregiving responsibilities for children, spouses, partners, older relatives, individuals with disabilities, or other individuals to quickly adjust to vastly changed circumstances.
Even as the pandemic evolves, the challenge of juggling work and caregiving obligations remains. Some workplaces, classrooms, and care facilities may operate on hybrid schedules, request or require employees to work extra shifts, or close with short notice. Employees may need to quarantine unexpectedly if they or household members are potentially exposed to or infected with COVID-19. Some employees who live in households with persons who are immunocompromised, children too young to be vaccinated against COVID-19, or other vulnerable individuals may be reluctant to return to the workplace.
There is generally no right under federal employment discrimination laws to reasonable accommodations based on caregiver status (absent a potential need to accommodate employees temporarily disabled by pregnancy, childbirth, or related medical conditions). However, as the EEOC highlighted, employees with caregiving responsibilities may have rights under other laws, such as leave for covered caregiving purposes under the Family and Medical Leave Act or similar state or local laws.
Discrimination against a person with caregiving responsibilities may be unlawful under federal employment discrimination laws enforced by the Equal Employment Opportunity Commission (EEOC). In this technical assistance document, the EEOC applies established policy positions to discuss when discrimination against applicants and employees related to pandemic caregiving responsibilities may violate Title VII of the Civil Rights Act of 1964 (Title VII), Titles I and V of the Americans with Disabilities Act of 1990 (ADA) (or Sections 501 and 505 of the Rehabilitation Act of 1973 (Rehabilitation Act), or other EEOC-enforced laws.
-Why did the EEOC establish the Caregiver Technical Guidance?
-How does the COVID-19 Pandemic impact individuals who need caregiving support?
-What individuals are eligible under this guidance?
-Can the EEOC guidance impact the ADA, Civil Rights, and the Rehabilitation Act?
-What Should Employers focus on when the EEOC guidance requirements impact their employees?
-How does the current workplace options like telecommuting, hybrid, and other options are challenging with the limitation of caregiving options for the immunocompromised, children not eligible for vaccinations?
-What are some of the challenges with the EEOC guidance for caregivers?
-What penalties are tied to the EEOC Caregiver Guidance?
-When does discrimination against applicants or employees with caregiving responsibilities violate federal employment discrimination laws?
-What are some examples of unlawful discrimination against female applicants or employees with caregiving responsibilities?
-How does the EEOC Guidance impact pregnancy?
-Can reasonable accommodation include Caregiving responsibilities?
-Are male applicants and employees protected from caregiver discrimination based on sex?
-Are LGBTQI+ applicants and employees protected from caregiver discrimination based on sex?
-What are the discriminatory practices that have resulted in penalties and harassment?
-All Employers with 15 or more employees
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-Company Leadership
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-Managers/Supervisors
-Employers in all industries
-Small Business Owners
-Anyone interested in learning about EEOC Technical Guidance’s
Margie Faulk is a senior level human resources professional with over 15 years of HR management and compliance experience. A current Compliance Advisor for HR Compliance Solutions, LLC, Margie, has worked as an HR Compliance advisor for major corporations and small businesses in the small, large, private, public, Non-profit sectors and International compliance. Margie has provided small to large businesses with risk management strategies that protect companies and reduces potential workplace fines and penalties from violation of employment regulations. Margie is bilingual (Spanish) fluent and Bi-cultural. Margie’s area of expertise includes Criminal Background Screening Policies and auditing, I-9 document correction and storage compliance, Immigration compliance, employee handbook development, policy development, sexual harassment investigations/certified training, SOX regulations, payroll compliance, compliance consulting, monitoring US-based federal, state and local regulations, employee relations issues, internal investigations, HR management, compliance consulting, internal/external audits, and performance management. Margie’s unique training philosophy includes providing free customized tools for all attendees. These tools are customized and have been proven to be part an effective risk management strategy. Some of the customized tools include the I-9 Self Audit. Correction and Storage program, Ban the Box Decision Matrix Policy that Employers can provide in a dispute for allegations, Family Medical Leave Act (FMLA) Compliance Guide, Drug-Free Workplace Volatile Termination E-Book and other compliance program tools when attendees register and attend Margie’s trainings. Margie holds professional human resources certification (PHR) from the HR Certification Institution (HRCI) and SHRM-CP certification from the Society for Human Resources Management. Margie is a member of the Society of Corporate Compliance & Ethics (SCCE).
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