With schools and many child care facilities now closed for more than 12 weeks, employees may have exhausted any child care-related leave available to them under the Families First Coronavirus Relief Act.
This article focuses on new guidance issued by the Equal Employment Opportunity Commission last week, concerning relevant legal considerations when employees request or flexibility because of caregiver/family responsibilities or pregnancy.
As summer camps cancel and other summer child care arrangements fall through, the demands on working parents’ and other caregivers’ time will continue, even after remote learning wraps up.
Employers are not legally obligated to accommodate an employee’s inability to work in the office for reasons related to child care, other than as required under the Families First Corona Virus Response Act if applicable. The Act can be read here: https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave. Employers that can accommodate child care-related restrictions through telework, intermittent leave, or leave for child-care related reasons, should nonetheless strongly consider doing so in order to retain and build goodwill with its workforce.
In its new guidance, the EEOC emphasizes that any flexibility offered to caregivers must be offered equally to male and female employees. Employers that provide females more favorable treatment or flexibility based on assumptions about traditional caretaking responsibilities are inviting sex discrimination claims.
Because sex discrimination includes discrimination based on pregnancy, employers cannot involuntarily exclude pregnant employees from the workplace, even if their motivation is to protect those workers. In its recent guidance, the EEOC discusses whether pregnant employees are entitled to reasonable accommodation and notes two things:
First, to the extent that a pregnancy-related medical condition constitutes a disability, a pregnant employee may be entitled to reasonable accommodation under the ADA.
Second, even if a pregnant employee does not have a disability, the employer is required to provide a pregnant employee with the same flexibility it affords other employees who are similarly restricted in their ability to work for reasons unrelated to pregnancy.
A pregnant employee who is afraid of exposure to COVID-19, or who is advised by a health care provider to avoid the workplace due to heightened risk attendant to even an uncomplicated pregnancy, does not require accommodation due to a pregnancy-related medical condition and therefore will not qualify for reasonable accommodation under the ADA. To the extent that the employer has extended flexibility (e.g. teleworking, schedule changes, altered work assignments, leaves of absence) to other workers, however, it must provide the same opportunities to pregnant workers similarly restricted in their ability to work.
The EEOC’s new guidance highlights the need for employers to assess employee requests for flexibility or accommodation on a case-by-case basis. In addition to ascertaining relevant legal obligations, employers should consider the practical and business-related implications of extending or denying flexibility where accommodation is not legally required.