An Evolving Workplace: New Protections for COVID-19 Caregivers

By Chloé Larsen

On March 14, 2022, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a new technical guidance called “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws.”[1]  This comes in response to the drastic shift that COVID-19 has created in employees’ work and personal obligations which often create competing job and caregiving demands.[2]  Factors such as abrupt changes in work schedules, work locations, and employment status have required millions of Americans with caregiving responsibilities to make quick adjustments.[3]  This new guidance addresses the interplay between existing federal employment discrimination principles involving employees who are also caregivers to situations specifically related to the COVID-19 pandemic, including caregiving for children, immunocompromised individuals, the elderly, and other vulnerable individuals.[4]  COVID-19 has presented unique challenges for employees juggling competing job and caregiving demands.[5]  

Previously, the EEOC has provided guidance, fact sheets, and best practices documents for employers which address caregiver discrimination under several circumstances.[6]  The latest guidance is formatted as “Frequently Asked Questions” which provide numerous examples of unlawful discrimination and harassment arising from caregiver obligations.[7]  It also points out that caregiver status is not itself a protected class under federal employment laws; however, employment decisions against employees who are also caregivers may constitute employment discrimination when they are made based on the employee’s protected characteristics, such as sex, race, color, religion, national origin, age, or disability, or based on the employee’s association with an individual with a disability.[8]  The guidance also states that caregiver discrimination violates federal law when it is based on intersections among several protected characteristics.[9]

Examples provided by the EEOC on this new guidance include that it would be illegal for an employer to refuse to hire an applicant “who is the primary caregiver of an individual with a disability who is at higher risk of complications from COVID-19 out of fear that the employer’s healthcare costs would increase.”[10]  The EEOC also demonstrates that it would be illegal for an employer to discriminate against a woman based on assumptions that as a woman she would be primarily focused on caring for her children while they attend school remotely or need to quarantine, meanwhile men are stereotyped as breadwinners.[11] 

The guidance also discusses scenarios that would constitute harassment in the workplace.  Among the examples listed are “unlawful hostile work environment by accusing female employees, without justification, of being preoccupied with keeping their families safe from COVID-19,” and “criticizing or ridiculing male employees for seeking to perform, or performing, caregiving duties, such as taking leave to care for a child who is quarantining after potential COVID-19 exposure.”[12]  

As a result of this guidance, employers may want to consider implementing the EEOC’s best practices suggestions.[13]  For employers, this can mean training managers about legal obligations regarding treatment of workers with caregiving responsibilities, creating and distributing policies addressing conduct that may constitute unlawful discrimination, harassment, or retaliation against caregivers, or informing employees of work-life policies and being supportive of employees who take advantage of them.[14]  The guidance only addresses employees’ rights under the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), and the Age Discrimination in Employment Act (“ADEA”), so employers should also consider whether there are other protections available to employees under state and local laws.[15]


[1]See U.S. Equal Emp. Opportunity Comm’n, EEOC-NVTA-2022-1, Enforcement Guidance: The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws (2022), https://www.eeoc.gov/laws/guidance/covid-19-pandemic-and-caregiver-discrimination-under-federal-employment.

[2]See id

[3]See id

[4]See id

[5]Courtney Hindin & Marissa Mastroianni, New EEOC Guidance Highlights Potential COVID-19 Caregiver Discrimination Claims, JD Supra (Apr. 5, 2022), https://www.jdsupra.com/legalnews/new-eeoc-guidance-highlights-potential-2583770/.

[6]See id

[7]Id

[8]See Press Release, EEOC Releases Information about Employment Discrimination Against Caregivers (Mar. 14, 2022), https://www.eeoc.gov/newsroom/eeoc-releases-information-about-employment-discrimination-against-caregivers.

[9]See Hindin & Mastroianni, supra note 3. 

[10]Press Release, supra note 6. 

[11]Id

[12]Lauri F. Rasnick & Susan Gross Sholinsky, A New Protected Class? Not Quite, but the EEOC is Looking Out for Workers with Caregiving Obligations, The Nat’l Law Review (Mar. 21, 2022), https://www.natlawreview.com/article/new-protected-class-not-quite-eeoc-looking-out-workers-caregiving-obligations.

[13]See U.S. Equal Emp. Opportunity Comm’n, EEOC-NVTA-2009-1, Employer Best Practices for Workers with Caregiving Responsibilities (2022), https://www.eeoc.gov/laws/guidance/employer-best-practices-workers-caregiving-responsibilities.

[14] See id

[15] See U.S. Equal Emp. Opportunity Comm’n, supra note 1. 

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