On March 14, 2022, the EEOC released new guidance regarding caregiver discrimination and the COVID-19 pandemic, in light of many workplaces returning to in-person work. The new guidance supplements earlier guidance regarding the treatment of workers with caregiving responsibilities.

The new guidance reiterates that while the status of being a caregiver is not a protected class in itself and the federal anti-discrimination laws do not provide employees with a right to accommodations to handle caregiving duties, an employer nevertheless has a responsibility to not discriminate against an employee who is a caregiver based on an employee’s sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age, disability, or genetic information. The guidance also notes that an employer cannot discriminate based on an intersection of characteristics (i.e. discriminating against an employee based on both their race and sex).

Caregiver Discrimination and Harassment Based on Sex and Pregnancy

With regard to COVID-related caregiver discrimination based on sex and pregnancy, the guidance cites the following examples of unlawful behavior:

  • denying male caregivers leave or a flexible work schedule to care for a family member with COVID-19, if the employer provides these accommodations to similarly situated female employees;
  • refusing to hire pregnant applicants or taking adverse employment action against pregnant employees based on “assumptions that these individuals…should be primarily focused on ensuring safe and healthy pregnancies”;
  • allowing employees to harass pregnant co-workers for taking preventive measures against exposure to COVID-19; unilaterally reassigning work responsibilities based on the belief that female caregivers would not want to be away from their families if a family member is infected with or exposed to COVID-19; and
  • disparaging comments made towards female employees for focusing on their careers rather than their families during the pandemic, which could contribute to a hostile work environment.

Associational Disability Discrimination

The guidance also provides examples of discrimination and harassment under the Americans with Disabilities Act (ADA) or Rehabilitation Act based on a caregiver’s association with an individual with a disability for whom they provide care. For example:

  • refusing an employee’s request for unpaid leave to care for a parent with “long COVID,” if the employer approves other unpaid leave requests to take care of other personal responsibilities;
  • declining an applicant because the applicant’s spouse’s disability increases the likelihood of her experiencing severe COVID-19 symptoms and the employer does not want to potentially incur higher health insurance costs, or the employer’s refusal to add the spouse to health insurance coverage when such coverage is made available to other employees’ spouses;
  • refusing to promote an employee who is the primary caregiver of a child with a mental health disability that worsened during the pandemic based on the assumption that the employee will not be able to adequately perform their job duties due to their caregiver obligations; and
  • mocking an employee for taking precautionary measures because they are caregivers for individuals at risk of severe COVID symptoms, which may also contribute to a hostile work environment.

Caregiver Discrimination Based on Race or National origin

With regard to COVID-related discrimination based on a caregiver’s race or national origin under Title VII, the guidance cites the following examples of unlawful behavior:

  • asking for additional proof of an Asian employee’s COVID-19 vaccine status because COVID-19 was first identified in an Asian country;
  • denying an employee’s request for leave to care for a family member from another country who was recently diagnosed with COVID-19 because a COVID-19 variant was first identified in the family member’s country of origin;
  • requiring employees to submit requests for accommodations in writing and waiting several days before providing a response, while permitting similarly situated employees of other races to make such requests verbally; and
  • assigning an unmanageable amount of work to an employee of color because they requested leave for pandemic related caregiving purposes.

Work Accommodations For Older Employees

As noted above, the guidance makes clear that the Age Discrimination in Employment Act (ADEA) does not give older employees a right to reasonable accommodations for caregiving or any other purpose. However, the ADEA does require employers to refrain from discriminating against older caregivers based on their age, including, as examples:

  • requiring an older employee to accept a reduced work schedule out of concern that they do not have the stamina to maintain their job duties while taking care of a grandchild recovering from COVID-19; and
  • allowing employees to harass older employees about caring for their grandchildren recovering from COVID-19, based on the assumption that the older employee should not care for their grandchild due to their age.

Poor Performance Due to an Employee’s Caregiving Responsibilities

The guidance makes clear that employers are not required to excuse poor performance resulting from an employee’s caregiving duties. For example, the guidance notes that an employer who has provided written warnings to employees who arrive late to work may also issue those warnings to employees who arrive late because of pandemic-related caregiving duties. However, employers may not inconsistently apply workplace discipline policies based on an employee’s protected characteristic.

While the EEOC’s guidance focuses on employee protections under Title VII, the ADA, and the ADEA, employers should also consult individual state and local anti-discrimination and leave of absence laws, as such laws may provide broader protections for caregiver employees.

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Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Laura Fant Laura Fant

As a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group, Laura Fant frequently counsels on a wide variety of employment matters, including employee leave and accommodation matters involving…

As a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group, Laura Fant frequently counsels on a wide variety of employment matters, including employee leave and accommodation matters involving the Americans with Disabilities Act, the Family and Medical Leave Act and related state and local laws. She also regularly drafts and advises on implementation and enforcement of employment and separation agreements, employee handbooks and company policies, as well as provides training on topics such as discrimination and harassment in the workplace, performance management, and the accommodation of physical and mental disabilities. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog.

Before joining the Firm, Laura was assistant general counsel to the City of New York’s Office of Labor Relations. Prior to that, she was law clerk to Judge Jose L. Fuentes of the New Jersey Superior Court, Appellate Division, and a judicial intern to Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York.

Raymond Arroyo

Raymond Arroyo is a law clerk in the Labor Department and a member of the Employment Litigation & Arbitration Group.