Labor Law: New guidance on discrimination against caregivers in the face of COVID-19 | Local business news
By KAREN MICHAEL Special Correspondent
Last month, the Equal Employment Opportunity Commission released a guide called The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws.
While the guide’s title focuses on the pandemic, discrimination against caregivers can be much broader than that resulting from COVID-19.
No state anti-discrimination law protects an employee’s right to care for others, and as such, employees generally do not have a general right to reasonable accommodation in order to perform caring responsibilities.
Virginia workers who work for an employer that employs six or more workers have the 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 limited Family Medical Leave Act, which provides for up to 12 work weeks of unpaid leave 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 have at least 50 or more employees within a 75 mile radius and the employee must have worked for the organization for at least one year and worked 1,250 hours in the prior 12 months and Leave can only be taken for certain limited reasons.
In addition to FMLA rights, an employer discriminates against an employee if it treats employees who have a caring responsibilities differently and based on a protected characteristic such as gender, race, sexual orientation, or age. Discrimination often results from stereotypes and assumptions about caring responsibilities.
For example, when an employer refuses to hire or promote a woman because she assumes that because she is female, her main focus would (or should) be looking after her young children while they attend school remotely , or to care for their parents or other adult relatives, the employer has engaged in unlawful discrimination.
Employers are also not allowed to penalize female employees more severely than equivalent male employees for absences or missed deadlines due to pandemic-related or other care responsibilities.
Sometimes employers make seemingly well-intentioned employment decisions, e.g. B. Refusing to use female supervisors for demanding or high-profile projects that may require overtime or travel, and doing so may also violate federal law.
It is also unlawful to discriminate against male carers based on gender stereotypes, including the assumption that men are breadwinners and women are carers.
The guidance states: “It would be unlawful for an employer to deny men time off or permission to work on a flexible schedule to care for a family member with COVID-19 or to perform other pandemic-related care responsibilities if the employer granting such requests from similarly situated women. For example, it would also be unlawful for an employer to deny requests for exceptions to return-to-work policies or attendance policies from men with care responsibilities based on their gender.”
Employers also must not treat LGBTQI+ applicants or employees differently or more onerous when it comes to caregiving, including requiring “proof” of a marital or other familial relationship with the caregiver when such requirements are not imposed on other employees who such requirements make inquiries.
It would also be unlawful to unilaterally oblige pregnant workers to telecommute or adjust their working hours to ensure their safety, “even if it is for allegedly benevolent reasons,” the EEOC explains.
Employers should consistently grant time off to recover from COVID-19. For example, if leave is granted to a black woman, it should be similarly granted to a white man who needs the same accommodation.
With regard to older workers, however, the EEOC notes that “employers may, at their discretion, grant older workers’ requests for leave, flexible working hours, telecommuting or other arrangements to enable them to fulfill pandemic-related care responsibilities. ADEA does not prohibit employers from treating older workers more favorably than younger workers based on the age of older workers, although some state statutes may not allow age favoritism for older workers.”
Consistent with all federal and state anti-discrimination laws, employers are not required to excuse poor performance based on caring responsibilities. For example, an employer can discipline an employee who is repeatedly late even if those attendance violations are related to pandemic-related care responsibilities, provided the employee treats other similar situations equally.
Employers should implement policies related to time off and attendance and consistently hold these expectations to account. Employers should also provide managers with training and guidance on the implicit biases and stereotypes that all too often influence company decision-making.
Karen Michael is an attorney and President of Richmond-based KarenMichael PLC and the author of Stay Hired. She can be reached at [email protected]