What to know about new EEOC guidance on caregiver employees

Your staff members who have caregiver obligations to a family member, or someone with a disability, technically aren’t a protected class under federal law.

However, a technical assistance document issued by the U.S. Equal Employment Opportunity Commission (EEOC), “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws,” indicates the agency will respond to caregiver discrimination complaints from your staffers.

Disparate treatment of a caregiver by an employer “may be unlawful” under enforceable federal employment discrimination laws, the agency said.

Some examples of actions that could open the door to penalties:

• criticizing male employees for taking leave to care for a child who is quarantining after potential COVID exposure
• automatically requiring a pregnant employee to telework, or adjusting the employee’s schedule to reduce contact with customers and co-workers, and
• accusing female employees, without justification, of being preoccupied with keeping their families safe to the point that it negatively impacts their work.

Taking care of caregivers

Fortunately, the EEOC has some suggested best practices for employers. Among them:

• Examine your firm’s flexibility, employment and termination practices, and evaluate if they may put employees with caregiver responsibilities at a disadvantage.
• Train managers about your legal obligations that may impact decisions about workers with caregiving responsibilities, including the Americans with Disabilities Act, Equal Pay Act, Pregnancy Discrimination Act, Family and Medical Leave Act (FMLA), and Employee Retirement Income Security Act.
• Ensure employee schedules are posted as soon as possible for positions with changing work schedules. This is so team members can more readily fulfill work responsibilities by making any necessary alternative care arrangements in advance.
• Provide support, resource and/or referral services that offer caregiver-related information to employees. These can include referral services for local child care centers or assisted living facilities, adoption assistance services, parenting education classes, college financing classes, or a toll-free caregiver hotline that provides guidance and advice.
• Provide reasonable leave to allow employees to provide essential care, even if you’re not required to do so by the FMLA.
• Remind all employees about your organization’s work-life policies.
• Create and distribute a policy that defines “caregiving” and “family” (beyond children and spouses), and addresses the types of conduct that might constitute illegal discrimination or retaliation against caregivers.
• Respond to any complaints effectively, so employees don’t feel they have to take their complaint to the feds.