By: Kristen Finlon
According to the Johns Hopkins Coronavirus Resource Center, the United States officially surpassed one million reported COVID-19 deaths this week. At the same time, employers across the country continue to press forward with returning to operations that are as close as possible to the “normal” that existed prior to 2020. However, a technical assistance document issued by the United States Equal Employment Opportunity Commission in March reminds employers to avoid discriminating against employees with caregiving responsibilities. Employers would do well to exercise caution with regard to these employees.
What is a “Caregiver”? A caregiver is an individual with caregiving obligations for individuals such as children, parents or other older relatives, spouses or partners, individuals with disabilities, and so on. During the COVID-19 pandemic, the tension between work and caregiving responsibilities has had a tremendous impact on employees across industries. Employees may share a household with individuals who are at high risk for serious illness or who cannot be vaccinated. Employees with children in the home may struggle with the changing schedules of schools, childcare facilities, or other individuals who share in childcare responsibilities. And employees find themselves providing care for household members or other individuals who have become ill with COVID-19. All of these issues may affect the willingness or ability of an employee to physically return to work, or may have other impacts on their performance of their job.
“Caregiver,” in and of itself, is not a protected category. However, employers who fail to accommodate or take into account the needs of their employees with caregiving responsibilities may find themselves much less competitive in the so-called “Great Resignation.” Worse, they may find themselves running afoul of federal and state laws prohibiting employment discrimination.
Caregivers and Sex Discrimination. Discrimination against an employee based on caregiving responsibilities may violate both North Carolina and federal law where it is based in the employee’s sex. This can play out a few different ways in the workplace. An employer may be engaging in unlawful discrimination, for instance, if it chooses not to hire, promote, or assign certain kinds of work to a female employee based on the assumption that she will not be able to juggle work and her caregiving responsibilities. Similarly, an employer will run afoul of discrimination statutes if it provides female employees more caregiving flexibility than male employees, based on gender stereotypes or assumptions about masculine versus feminine roles in the workplace. And employers may not discriminate against LGBTQI+ employees with caregiving responsibilities by imposing different requirements upon them than would be imposed upon heterosexual employees.
Caregivers and Race Discrimination. Discrimination against an employee based upon caregiving responsibilities may also run afoul of both North Carolina and federal law where it is based upon the employee’s race. For example, an employer may be engaging in unlawful discrimination where it chooses not to hire, promote, or assign certain kinds of work to an employee based upon racial stereotypes relating to that employee’s caregiving relationships. Similarly, Asian communities in the United States have suffered particular kinds of race discrimination in the COVID-19 pandemic. Employers may not perpetuate this discrimination by imposing different requirements or expectations upon Asian employees with caregiving responsibilities.
Caregivers and Disability. The Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against an employee or applicant on the basis of that individual’s relationship to or association with a disabled individual. In other words, for example, an employer is prohibited from refusing to hire an otherwise qualified applicant simply because that applicant has a disabled spouse. In the context of COVID-19, the ADA will similarly prohibit an employer from discriminating against an employee or applicant because that individual has caregiving responsibilities for someone with disabilities which prevent them from being vaccinated, for instance, or disabilities arising from a long COVID infection.
Caregivers and Family and Medical Leave. Employees with caregiving responsibilities may also require medical leave under the Family and Medical Leave Act to care for family members who have become infected with COVID or are suffering from the impact of long COVID. Employers who are covered by the Family Medical Leave Act must comply with the requirements of that statute in responding to COVID-related requests for that leave by caretakers.
Conclusion. As the COVID-19 pandemic progresses, employers across industries seek ways normalize their operations as much as possible. However, employers would do well to ensure that return-to-work policies and leave policies take into account the needs of caregivers, and avoid violating the North Carolina and federal statutes prohibiting workplace discrimination. These are just a few examples of possible pitfalls confronting employers as they navigate their business needs during these times. Employers would do well to consult with counsel to ensure that they are providing nondiscriminatory and competitive workplaces for their employees.
Kris Finlon represents individuals and businesses in a wide range of employment matters including discrimination, wrongful termination, and wage and hour law violations. She drafts and advises clients on severance agreements, employment agreements, and non-compete agreements. Kris frequently handles charges of discrimination before the EEOC (Equal Employment Opportunity Commission), administrative proceedings, and litigation in state and federal court.