Even as the COVID-19 surge wanes, the Equal Employment Opportunity Commission (EEOC) issued a reminder to employers that caregiver obligations continue notwithstanding our gradual return to normal. The 10-page technical document explains that “caregiver discrimination” violates federal law only if it is based on:
Although employees are not entitled to reasonable accommodations solely based on their status as a caregiver, even well-intentioned decisions can lead to legal exposure. Assumptions based on stereotypes, such as bypassing a woman for a promotion involving regular travel because she is assumed to be the primary caregiver and needs to be close to home in the event of a sudden school closure, can implicate discrimination laws. Or assuming an older worker needs to work fewer hours because he/she is caring for a grandchild and does not have the stamina for full-time work. Further, the law protects LGBTQI+ employees and applicants and explains how pregnancy discrimination related to the pandemic may arise. Other laws, such as FMLA can also come into play.
Companies are not required to excuse poor performance resulting from employees’ caregiving duties. The key is to apply all performance standards consistently.
In addition to publishing the technical guidance, the EEOC updated its FAQs page regarding COVID-19 to include Section I – Caregivers/Family Responsibilities.
The updated guidance answers the following questions about religious accommodations for COVID-19 vaccination requirements:
No “magic words” are required to request a religious accommodation, so employers need to have a clear process for employees, exercise caution when reviewing whether the religious belief is sincere, consider alternative accommodations, and evaluate undue hardship. The “undue hardship” evaluation under Title VII differs from the one under the ADA. Under Title VII, a requested accommodation causes undue hardship if it would impose on the employer more than a de minimis, or minimal, cost or burden. Such a burden may include the risk of the spread of COVID-19 to other employees or the public, but it cannot be speculative or hypothetical. Further, employers should consider changing circumstances, including the company’s operational plan and the employee’s evolving religious beliefs.
Given the extraordinary circumstances of the pandemic, the EEOC took the unusual step of making its internal accommodation request form available to the public.