EEOC Updates COVID Technical Guidance to Address Caregiver Issues

 

On Pi day (i.e., March 14 or 3.14), the EEOC released a new publication, The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws, and updated its Technical Assistance Guidance for COVID issues which impact federal equal opportunity laws.   In particular, this EEOC update focuses on sexual stereotypes associated with caregiving responsibilities.   This update to the COVID Guidance is as follows:

I. Caregivers/Family Responsibilities

For additional information about pandemic-related caregiver discrimination under the laws enforced by the EEOC, see the EEOC’s technical assistance document, The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws.

I.1. If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations? (3/14/22)

Employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caregiving responsibilities for children.

I.2. How might unlawful caregiver discrimination related to the COVID-19 pandemic arise under the laws enforced by the EEOC? (3/14/22)

Caregiver discrimination violates the laws enforced by the EEOC if it is based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, national origin, disability, age (40 or older), or another characteristic covered by federal employment discrimination laws. Caregiver discrimination also is unlawful if it is based on the caregiver’s association with an individual with a disability, or on the race, ethnicity, or other protected characteristic of the individual receiving care.

Caregiver discrimination related to the pandemic may arise in a variety of ways. For instance, under Title VII, employers may not discriminate against employees with pandemic-related caregiving responsibilities based on their sex, including gender stereotypes associated with caregiving responsibilities or roles. For example, employers may not decline to assign female employees with caregiving responsibilities demanding or high-profile projects that increase employees’ advancement potential but require significant overtime or travel. Likewise, employers may not reassign such projects to other employees based on assumptions that female caregivers cannot, should not, or would not want to work extra hours or be away from their families if a family member is infected with or exposed to COVID-19. Employers also may not deny male employees permission to telework or to adjust their schedules to enable them to perform pandemic-related caregiving obligations, such as caring for young children or parents, while granting such requests when made by similarly situated female employees.

Title VII also prohibits employers from discriminating against employees with pandemic-related caregiving duties based on their race or national origin. For example, employers may not require more burdensome processes for employees of a certain race or national origin who are requesting schedule changes or leave related to COVID-19 caregiving. Employers also may not deny such requests more frequently, or penalize employees for requesting or receiving schedule changes or leave for caregiving purposes, based on employees’ race or national origin.  Discrimination based on citizenship or immigration status against workers with caregiving responsibilities also can be unlawful under a law enforced by the Department of Justice.

Under the ADA, employers may not discriminate against workers based on stereotypes or assumptions about workers’ caregiving responsibilities for an individual with a disability, such as a child, spouse, or parent with a disability. For example, if an applicant is the primary caregiver of an individual with a disability who is at higher risk of complications from COVID-19, an employer may not refuse to hire the applicant out of fear that the care recipient will increase the employer’s healthcare costs. If the applicant is hired, the employer may not refuse to allow the care recipient to be added as a dependent on the employer’s health insurance because of that individual’s disability. An employer also may not refuse to promote employees with caregiving responsibilities for an individual with a disability based on the assumption that they will take a significant amount of leave for caregiving purposes.

I.3. Are these legal protections available only to workers caring for children, or are they also available to workers with other caregiving obligations? (3/14/22)

This response includes hyperlinks to non-governmental sources.  The EEOC includes these resources solely for informational purposes.  The EEOC does not endorse these resources or the entities responsible for them, and it does not vouch for the accuracy of the information provided by referencing the non-governmental sources in this response.

Employers may not discriminate against applicants or employees with caregiving responsibilities based on characteristics protected by the laws enforced by the EEOC, including caregivers’ sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age (40 or older), disability, association with an individual with a disability, or genetic information (including family medical history). These protections are available to workers with any type of caregiving responsibilities, including care for children, spouses, partners, relatives, individuals with disabilities, or others.

State or local laws may provide additional protections for workers with caregiving responsibilities. Employees with caregiving responsibilities also may have rights under other laws, including the Family and Medical Leave Act or similar state or local laws.

I.4. Should employers and employees be aware of any other pandemic-related caregiver discrimination issues? (3/14/22)

Yes. In this What You Should Know document, the EEOC addresses several different types of potential pandemic-related caregiver discrimination. For example:

A.10 addresses employer inquiries about family members with COVID-19 or related symptoms.

C.5 addresses employer-imposed start date postponements or offer withdrawals for pregnant applicants.

D.13 addresses whether employees are entitled to accommodations to avoid exposing family members at high risk of complications from COVID-19.

J.1 and J.2 address excluding employees from the workplace based on pregnancy and accommodating pregnancy.

K.2 addresses pregnancy accommodation requests related to vaccination.

K.3 addresses employer encouragement of vaccination of family members.

K.13 addresses decisions not to be vaccinated due to pregnancy.

K.18 addresses GINA and incentives for non-employer-provided family member vaccinations or employer requests for documentation of family member vaccinations.

K.20 addresses GINA and incentives for employer-provided family member vaccinations.

K.21 addresses GINA and family member vaccinations without incentives.

For general information about caregiver discrimination and federal employment discrimination laws, see the EEOC’s policy guidance, associated fact sheet, and best practices

 document.

New Act Expands Servicemember and Caregiver Leave under the FMLA.

As discussed in the February 13, 2008 posting at Servicemember Leave Amendments to the FMLA: Overdue or Raising More Questions Than Answered? , on January 28, 2008, President Bush signed the National Defense Authorization Act of 2008, § 585 of which amended the FMLA to create two new forms of family leave: exigency leave and caregiver leave for members of the families of military servicemembers. Yesterday, President Obama signed the National Defense Authorization Act for Fiscal Year 2010, which amended the NDAA Amendment to the FMLA. In this very long Act, section 565 amends the FMLA in a number of respects.

In short, the new FMLA amendments delete references to “contingency operations,” replaces “active duty” to “covered active duty,” expands exigency leave coverage to members of the families of active members of the regular armed forces (instead of just members of the reserved forces and national guard) and expands coverage of the 26-week servicemember leave to families of veterans who served in covered active duty at any point in the prior five years and were injured in the line of covered active duty.

First, the new amendment deletes the “newish” subsection (16) of the amended FMLA and amends the “newish” subsections (14), (15), and (19):

(14) ACTIVE DUTY.—The term ‘active duty’ means duty under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.
(15) CONTINGENCY OPERATION.—The term ‘contingency operation’ has the same meaning given such term in section 101(a)(13) of title 10, United States Code.
(16) COVERED SERVICEMEMBER.—The term ‘covered servicemember’ means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.
. . .
(19) SERIOUS INJURY OR ILLNESS.—The term ‘serious injury or illness’, in the case of a member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.

These “newish” subjections have been replaced by the following language:

(14) COVERED ACTIVE DUTY.—The term ‘covered active duty’ means—
‘‘(A) in the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and
(B) in the case of a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.
(15) COVERED SERVICEMEMBER.—The term ‘covered servicemember’ means—
(A) a member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or
(B) a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.
. . .
(18) SERIOUS INJURY OR ILLNESS.—The term ‘serious injury or illness’—
(A) in the case of a member of the Armed Forces (including a member of the National Guard or Reserves), means an injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating; and
‘‘(B) in the case of a veteran who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during a period described in paragraph (15)(B), means a qualifying (as defined by the Secretary of Labor) injury or illness that was incurred
by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.

The “newish” subsections (16) through (19) have now been renumbered as paragraphs (15) through (18), respectively. In other words, the language of “newish” subjections (17) and (18) has not changed, but they have been renumbered to (16) and (17) and “newish” subjection (16) [on contingency operations] was deleted entirely.

Second, the new amendment modified 29 U.S.C. § 2612(a)(1)(E), which currently provides:

(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.

To the following language:

(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.

Third, 29 U.C.S. § 2612 (e)(3) has been amended as follows:

From the current language:

NOTICE FOR LEAVE DUE TO ACTIVE DUTY OF FAMILY MEMBER.—In any case in which the necessity for leave under subsection (a)(1)(E) is foreseeable, whether because the spouse, or a son, daughter, or parent, of the employee is on active duty, or because of notification of an impending call or order to active duty in support of a contingency operation, the employee shall provide such notice to the employer as is reasonable and practicable.

To the new language:

NOTICE FOR LEAVE DUE TO ACTIVE DUTY OF FAMILY MEMBER.—In any case in which the necessity for leave under subsection (a)(1)(E) is foreseeable, whether because the spouse, or a son, daughter, or parent, of the employee is on covered active duty, or because of notification of an impending call or order to covered active duty, the employee shall provide such notice to the employer as is reasonable and practicable.

Fourth, the new Act inserts the following language for 29 U.S.C. § 2611(19):

(19) VETERAN.— The term ‘veteran’ has the meaning given the term in section 101 of title 38, United States Code.

Finally, the employee’s duties regarding foreseeable leave under 29 U.S.C. § 2612(e)(2)(A) have been amended as follows:

(2) Duties of employee.
In any case in which the necessity for leave under subparagraph (C) or (D) of subsection (a)(1) or under subsection (a)(3) of this section is foreseeable based on planned medical treatment, the employee -
(A) shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer,subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, parent, or covered servicemember of the employee, as appropriate; and

Revised FMLA regulations are sure to follow at some point . . . .

Insomniacs can read the new Act in its entirety at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h2647enr.txt.pdf

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.