On March 14, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released a new technical assistance document, “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law,” reminding employers that caregiver obligations continue notwithstanding our gradual return to normal. The 10-page document warns that, even as pandemic conditions change, many employers, schools, and daycare providers continue to operate on hybrid schedules or may close with little advance notice. These conditions continue to place disproportionate burdens on those with caregiving responsibilities for children, spouses, partners, older relatives, and individuals with disabilities or who are immunocompromised.

Although federal employment discrimination laws do not expressly prohibit discrimination based on caregiver status, assumptions about caregiver status may result in employment decisions that impact employees in protected classes, such as women who may be assumed to have primary childcare or elder care responsibilities or those associated with persons who are disabled. Even well-intentioned decisions, such as bypassing a candidate for a promotion involving regular travel under the assumption they will want to be close to home in the event of a sudden school closure, can implicate federal employment discrimination laws. Therefore, the EEOC offers several reminders that may be particularly pertinent in the new-normal workplace:

  • Although employers generally do not need to reasonably accommodate requests for flexibility due to caregiving, such requests should be considered fairly and accommodations applied consistently.
  • Even well-intentioned goals of protecting pregnant employees should not result in imposing work-from-home or physical distancing arrangements, as these isolate pregnant employees. However, if job modification, leave, or alternative assignments are extended to employees temporarily unable to work, similar arrangements must be considered upon request by pregnant workers who are temporarily unable to perform their job duties.
  • The ADA not only protects applicants and employees with disabilities, but also those who are associated with an individual with a disability. If employers grant unpaid leave for personal reasons, they must consider requests for unpaid leave to care for a parent or spouse with, for example, long COVID if it constitutes a disability. Similarly, employers should consider applicants and employees for hire, promotion, and other opportunities irrespective of assumptions that they may be less available or committed because they are known to have caregiving responsibilities.
  • Sex- and gender-identity stereotyping are particularly risky with regard to caregiving obligations. Just as women should not be denied opportunities under sexist assumptions they have child- or elder care obligations, the EEOC also reminds employers not to dismiss requests for flexibility in returning to work to attend to caregiving duties when submitted by male or LGBTQI+ employees under the assumption that these are female, cisgender, or heterosexual responsibilities.
  • Employers should be vigilant against age stereotyping, such as by assuming that an older worker needs reduced hours because he is attending to a disabled spouse, or caring for a grandchild while the child’s parent recovers from COVID-19, and is assumed to lack stamina to perform both his work and caregiving duties effectively.
  • Harassment becomes even harder to detect and monitor in a hybrid or fully virtual work environment, but employers still must protect employees from harassment. This includes harassment over pandemic caregiving responsibilities, such as disparaging female employees for allegedly focusing on kids instead of work; ridiculing male employees for modifying their job duties to perform caregiving duties; asking intrusive questions about family relationships when employees take time to care for same-sex spouses, partners, or their extended family; questioning the professional dedication of employees taking precautionary measures to avoid infection; or the like. The EEOC encourages employers to refresh and revisit harassment policies and complaint procedures, implementing training, and check in with employees to address any harassment-related questions, concerns, or complaints.

In addition to publishing the technical guidance, the EEOC updated its FAQs page regarding COVID-19 to reinforce the importance of considering the intersection of caregiving obligations with protected characteristics such as race, national origin, gender, and disability. The agency also linked to its existing best practices guidance aimed at removing barriers to equal employment opportunities for caregivers, underscoring that the technical guidance builds on an existing framework, only now tailored to a COVID-19 and post-pandemic workplace. Managers and human resources professionals are encouraged to review this existing and updated caregiver guidance.