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Covid-19 Pandemic Related Caregiver Discrimination

August 26, 2022

For individuals with caregiving responsibilities (“caregivers”), the effects of the Covid-19 coronavirus pandemic go beyond work obligations. While navigating hybrid work schedules and tighter shifts, they must also find time for their duties to spouses, children, and disabled relatives. These individuals may live with children too young to receive the vaccine or relatives who are immunocompromised. As they juggle work and caregiving duties, they may face employment related discrimination because of these pandemic-related caregiving responsibilities. Fortunately, the US Equal Employment Opportunity Commission (EEOC) provides regulations to protect employees from workplace prejudice because of any caregiving obligations they may have to family members and loved ones. This article will summarize those guidelines to assist employers and employees in addressing pandemic-related caregiving discrimination. 

When Does Workplace Caregiver Discrimination Violate US Employment Laws? 

According to the EEOC, employers violate US employment laws when they discriminate against an employee/applicant with caregiver responsibilities based on their sex (sexual orientation and gender identity), pregnancy status, race, age, national origin, religion, disability, or genetic information. It is also unlawful for an employee to discriminate against an employee/applicant based on their association or caregiving responsibilities to people with disabilities or other protected characteristics (race, ethnicity, etcetera). 

What About Caregiving Triggers Discrimination Considerations?

Making employment decisions based on gender stereotypes is also illegal. For example, when the company fails to hire female applicants because they assume they would focus more on caring for their children and elderly relatives than on their work. Even further, EEOC regulations prohibit punishing female employees more harshly than male colleagues for absences or missed deadlines because of pandemic-related caregiving obligations. These regulations apply to discrimination against male employees, as well. It is unlawful to discriminate against male staff who are caregivers based on gender stereotypes that women are caretakers while men are breadwinners. Employers may not deny male employees leave or requests for a flexible schedule to attend to family members or loved ones infected with COVID-19 if they grant such requests to female staff. 

What About LGBTQ Employees and Applicants?

EEOC regulations prohibit discrimination against LGBTQ employees and applicants with caregiving responsibilities because of their sexual orientation. Employers may not deny requests for flexible hours or office leave from these individuals because of their gender identity if they grant permission to such requests from other staff members. They may also not require these employees to grow through rigorous procedures before granting their leave requests if other workers do not go through such processes. 

What About Discrimination Against an Employee With Caregiving Responsibilities Based on Race and Ethnicity?

Discriminating an employee with caregiving obligations because of their race, ethnicity, or national origin is illegal under EEOC laws. 

For instance, managers may not require black or Asian employees to go through burdensome processes to obtain leave or a flexible work schedule to take care of a relative, while others have their requests granted without such procedures. 

Employers may also not deny an employee’s requests for leave to care for a loved one from another country with a COVID-19 infection because a COVID-19 variant was identified in the infected individual’s home nation. 

Caregiver workplace harassment or discrimination based on citizenship or immigration status is also unlawful under Department of Justice laws. 

What About Discrimination Because of Caregiving Responsibilities to an Individual With Disabilities?

Under EEOC regulations, it is illegal to discriminate against an employee who is a caregiver to an individual with disabilities because of their association with the care recipient. Some instances where such discrimination can occur include refusal to: 

  • promote or hire an applicant/employee who is a parent to a child with a mental health disability that escalated during the pandemic because the applicant/staff would not show commitment to their duties due to their caregiving obligations. 
  • hire an applicant who has a spouse with a disability that has a risk of severe illness from COVID-19 infection because the employer wants to avoid the increased health insurance costs when the company includes the ailing spouse in its healthcare plan. 
  • include the applicant’s spouse in the company’s health insurance plan after hiring the applicant because of the disability mentioned above.

Reasonable Accommodation for Caregivers Under US Federal Employment Laws

EEOC regulations do not give US employees a right to workplace accommodations (telework, flexible schedules, overtime, etcetera) because of their caregiving duties. 

However, other US laws make provisions for such employee rights, such as the Family and Medical Leave Act. The act allows workers to request office leave for caregiving purposes. 

Other state and local laws also provide reasonable accommodations for workers with caregiving obligations. That said, employers can grant workplace accommodations to staff who are caregivers at their discretion, as long as they do so in a non-discriminatory manner. 

How Employees Can Respond to Discrimination Based on Covid-19 Related Caregiver Status 

Employees with caregiver status who are victims of discrimination because of their race, gender, sexual orientation, or affiliations with a person with a disability should report the harassment/discrimination to their employers. 

State, local government, and private sector employees should report discrimination incidences to the EEOC, state, or local government agencies responsible for employment discrimination. They may file their complaints with the EEOC within 180 in states without a local EEO agency and 300 days in states with a local EEO agency. 

Federal workers should report discrimination cases to their agency’s EEO office within 45 days. State and local government anti-discrimination agencies also have timelines for state and local government employees to report harassment cases. 

Employers and their staff can obtain further details on caregiver discrimination from the EEOC’s caregiver discrimination policy guidance, associated fact sheet, and employer best practices document. 

To sum it up…

US employment laws prohibit all kinds of workplace discrimination. If you’ve been a victim of workplace harassment because of your caregiver status, you can take steps to protect your rights and those of other employees. At the Law of Office of Sheri Oluyemi, we bring our experience in US employment laws to help employees get justice at work. Reach out to us today to request a free teleconference, and let’s safeguard your right to fair treatment in your workplace.

Discrimination Based on Hair?: The CROWN Act 

July 5, 2022

Crown Act passes US House of Representatives

On March 18, 2022, the US house of representatives passed the CROWN ACT banning “discrimination based on an individual’s texture or style of hair.” The bill, first introduced to the house in 2021 by Representative Bonnie Watson Coleman, was passed in a vote of 235-189. It currently is being read in the US Senate.

While this is the first time the bill is getting approval at the federal level, it has already made its way into state legislation across several states in the US. In 2019, California became the first state to pass the CROWN ACT into law by a unanimous vote. Twelve other states, including New York, Washington, Nebraska, Delaware, Oregon, and Colorado, would eventually follow suit between 2019 and 2021. Here in Georgia, the CROWN ACT is not yet law.

What Is the Crown Act as Relates to Discrimination Based on Hair?

The CROWN ACT stands for Creating a Respectful and Open World for Natural Hair. According to the bill, “Routinely, people of African descent are deprived of educational and employment opportunities because they are adorned with natural or protective hairstyles in which hair is tightly coiled or tightly curled, or worn in locks, cornrows, twists, braids, Bantu knots, or Afros.”

Black people have often faced racial discrimination across corporate America because of how they groom their natural hair. According to one study, employers perceive black women with natural hairstyles as less competent and professional (and less likely to be recommended for job interviews) than black or white women with straight hairstyles. In 2016, Sabrina Chiodo, assistant manager at Jack Astor’s Bar and Grill, sent home 20-year old Akua Agyemfra for wearing her hair in a bun (contrary to restaurant policy that all female staff wear their hair down). Elsewhere, in Louisiana, Imani Jackson lost her job at American Screening LLC within a month of wearing her natural hair in a bun instead of the wig she had worn during her interview and her first month working at the company. But it’s not only African-American women that suffer from racial discrimination because of their hair. In 2018, Andrew Johnson, a black high school wrestler, was told by a referee to cut his dreadlocks or forfeit a wrestling match. It is cases like these that the CROWN ACT seeks to address and outlaw. 

What Are the Effects of the CROWN ACT on Discrimination?

The CROWN ACT prohibits racial discrimination based on a person’s hair. This discrimination is often unspoken in US workplaces but ladened in employee handbooks that specify company policy. As such, the CROWN ACT would be a significant step to enabling a more diversified and inclusive corporate America. In the wake of the CROWN ACT, more companies will adopt new policies that allow women of color to groom their natural hair the way they deem fit without discrimination. Also, before the CROWN ACT, cases of race-based hair discrimination that have made it to US courts have failed to yield substantial results. For instance, in 2014, US District Court Judge Charles R. Butler Jr dismissed a race-based hair discrimination case involving Chastity Jones and Catastrophe Management Systems.  In 2016, a three-judge panel of the 11th Circuit Court of Appeals upheld the district court’s decision and further attempts to get the US Supreme Court to intervene failed to yield results. 

However, if the US Senate passes the CROWN ACT into law, it would provide the necessary legal protection for victims of race-based hair discrimination, especially since there’s currently no other federal legislation in the US that protects people of color from stigmatization because of their hair. 

Furthermore, since its inception in California in 2019, the CROWN ACT has created awareness and kick-started healthy conversations about racial discrimination based on a person’s hair. These conversations will only become more mainstream once the bill becomes federal law. 

Conclusion

Workplace discrimination based on hair is more common than we realize for people of color. The stigma behind natural hair for black people has often deprived them of educational and employment opportunities. However, the narrative should change once the CROWN ACT becomes federal law. If you’re a black person in the US facing race-based hair discrimination at your workplace or school, hiring legal help is the best course of action to protect your rights.

Or, if you are an employer seeking to create an inclusive dress policy or dress code with specifications about hair, contact us.If you want to review your company’s policy surrounding natural hair in the wake of the CROWN ACT, our expert team of lawyers can also assist you throughout the process and ensure there are no grey areas that could get you into a potential lawsuit.

At the Law Office of Sheri Oluyemi, we have the best legal hands in US employment law to handle workplace discrimination. Reach out to us today; let’s look at your case and begin proceedings to get you justice.

The Legality of an Employer-Mandated Covid Vaccine

March 28, 2021

Generally, Employers Can Make The Vaccine Mandatory

Since there are COVID-19 vaccines now available, are employers permitted by law to require employees to get vaccinated? The simplified answer is yes, in an employment at will state like Georgia, employers do have the right to mandate that their employees receive the vaccine. Employees who want to continue working at that employer will have to get a vaccine and can be fired, without legal recourse, if they do not.

Employment At-Will

Employment is often at-will, which means it is possible for either the employee to quit and walk away or for the employer to fire them at any time for no reason or for any reason. The employer will set the working conditions, and as long as those conditions meet federal law and guidelines, employees must abide by the employer’s standards, which will include health and safety guidelines and conditions. As we all know, the coronavirus pandemic is a major health and safety issue for every workplace.

A written fixed-term employment agreement, on the other hand, might not accommodate the unilateral inclusion of a mandatory vaccine requirement if this can be construed as a material term.

Civil Rights Legislation

According to guidance from the Equal Employment Opportunity Commission (“EEOC”) which is the federal agency that enforces various civil rights laws regarding discrimination in employment, generally barring specific exceptions, it is legal for employers to require their employees to be vaccinated against covid.

There was initially concern that requiring a vaccine could violate the Americans with Disabilities Act (“ADA”). However, that law prevents employers from conducting certain types of medical examinations, not including requiring vaccines that help to protect against COVID-19. By requiring the vaccine, the employer is not looking for any information about a person’s current health status or impairments, and as such, it does not constitute a medical examination. Therefore, per EEOC guidance at the time of publishing, it is not in violation of the ADA to mandate the vaccine and obtain employee certification of having been vaccinated.

Exemptions For A Mandatory Vaccine.

However, employers still must account for legal nuances. An employee with a disability and who has a medical reason to not get a vaccine will likely qualify for exemption for medical grounds under the ADA. Those who have a sincerely held religious belief that does not allow vaccines could get a religious exemption under Title VII of the Civil Rights Act of 1964 (“Title VII”). Those who fall into either or both of these categories and who cannot be vaccinated will want to seek an exemption based on those grounds.

Upon requesting an exemption, the employer must engage in an interactive conversation with all stakeholders to determine whether a reasonable accommodation exists. Some of these reasonable accommodations might include the use of personal protective equipment, working separately from others, or working from home, for example. As long as there are means to accommodate unvaccinated employees that are not unduly burdensome to the employer, it would be illegal to terminate such an employee.

Generally, Employers Can Decline To Make The Vaccine Mandatory

A common question addresses what would happen if an employer discovers that a worker cannot be vaccinated because of a disability or religion, but this creates a risk in the workplace. In these cases, employers are not allowed to exclude that employee from the job or take any other action unless they do not have any other means of providing reasonable accommodations that could help reduce the risk presented to themselves and that they present to other people.

But what about the employer’s general duty to maintain a safe workplace free from known hazards under the Occupational Health and Safety Act (“OSHA”)? There is no federal mandate that requires all employers to make their workers get vaccinated. They can decide on a case-by-case basis. Employers will have to determine what makes the most sense of them and their employees. The location and type of work that is being done will often factor into whether an employer should require vaccination. Those companies that are public-facing and have regular in-person interactions will be more likely to require vaccination from the employees. It provides added safety, and it is something that many of the customers and clients will expect. Those that do not necessarily have face-to-face encounters might not require vaccination.

Potential Pitfalls Requiring Other Vaccine Considerations

If an employer is requiring that employees receive vaccines, they may want to consider paying the employees for the time it takes to get the vaccine. Often, people have to take time out of their day to wait in line for the vaccine.

Federal law entitles employees to compensable work time for these waits if the employer requires it. If the employers do not provide payment for the time that it takes to get the vaccine, they would violate the law, which can carry heavy penalties. If there is a union involved, there could also be other collective bargaining agreements or further obligations the employer would have to meet.

Some employers might want to reduce the wait time by having a third party administer the vaccine at their workplace. They can schedule the appointments, and it could reduce the amount of time that it takes to get everyone vaccinated. However, they will want to determine if any supposed injuries from getting the vaccine might trigger their worker’s compensation insurance liability coverage. Employers should check with their insurance company prior to making a decision.

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As more places start to open, and as more people go back to in-person work with the vaccines readily available, employers should seek counsel about what they can do within the confines of the law in their unique workplace.

DOL Revisions to FFCRA Regulations: What You Need to Know

September 25, 2020

The Families First Coronavirus Response Act (FFCRA) Regulations were promulgated by the US Department of Labor to implement the FFRCA. Our Employment Law Blawg summary of the FFCRA is here. In response to a ruling from the U.S. District Court in the Southern District of New York, the initial regulations effective on April 1, 2020 were replaced effective, September 16, 2020. Here’s what you need to know about the revisions.

Changes to the regs were deemed necessary to improve the process of taking and requesting paid leave, including the availability of leave and related terms. The DOL aimed to achieve consistency and clarity throughout the regs, and in that vein, the new revisions were outlined to provide the following:

  • Reaffirmation that employees can only take FFCRA leave if and when work is available to them. That is, if someone is on a work reduction layoff, they cannot claim FFCRA leave because there is no work available at the moment.

  • Reaffirmation that employer approval is required for all intermittent leave taken under FFCRA. Failure to seek employer approval will result in denial of FFCRA leave benefits.

  • Clarification that supporting documentation should be provided as soon as possible. Employees must do their due diligence to provide employers with paperwork substantiating their eligibility for leave as quickly as they can when requesting FFCRA leave.

  • Correction of inconsistencies on the circumstances in which employees are required to notify or request permission from employers for FFCRA leave, or any leave related to expanded family and medical needs.

  • Revision of the definition of the term “health care provider”to be defined as “only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.”

In sum, the newly revised FFCRA regs now defines the parameters for which employees have to request leave, or whether they can take leave without substantiated requests. It also clarifies some of the definitions outlined in the previous publication and it corrects inconsistencies to provide clearer guidelines for employers to follow when handling employee leave related to the coronavirus pandemic.

As the world has begun to reopen and the economy to rebound, employment laws must keep pace. However, it is a constant battle of finding balance, so future updates are to be expected as things continue to evolve.

Currently, employers and employees alike need concise, clear policies manage the public health crisis’ impact on their day-to-day operations, including staffing. The new regs are a good place to start with developing those policies for your organization today.

Georgia COVID-19 Pandemic Business Safety Act

July 24, 2020

Recently, the Georgia General Assembly approved the Georgia COVID-19 Pandemic Business Safety Act which provides protections for businesses from liability that may be linked to the transmission, exposure, or potential exposure to COVID-19, except in cases of gross negligence, wanton misconduct, reckless infliction of harm, or intentional infliction of harm. This law applies to all actions that occur prior to July 14, 2021.  The laws effective date is August 7, 2020.

What does this mean for employers?

The Act provides that businesses and healthcare facilities are not liable for the “transmission, infection, exposure, or potential exposure of COVID-19” unless such outcomes occur as a result of gross negligence, wanton misconduct, or reckless or intentional infliction of harm. The Act also includes a presumption of risk for potential claimants.  Put simply, this presumption means that a potential claimant assumes the risk of potential COVID-19 related outcomes and waives all rights to potential civil claims except in instances of gross negligence, wanton misconduct, or reckless and/or intentional infliction of harm.

A business that posts signage explaining its patrons’ assumption of risk under Georgia law establishes a rebuttable presumption against future claims related to COVID-19. This presumption also applies to healthcare facilities. The law enumerates specific requirements related to the signage.  Specifically, a sign must be at least 10-point Arial font and be visibly posted near at least one point entry for the establishment. A receipt or proof of purchase for entry or attendance issued to a claimant (including an electronic or paper ticket or wristband) may include a statement in at least ten-point Arial font warning those entering the premises that:

“Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.”

What does this mean for individuals?

In order for an individual to have a viable COVID-19 liability claim against a business, he or she must prove that the business did not exercise even the slightest diligence against the transmission of COVID-19.

Thus, in cases where a business displays appropriate signage at a point of entry explaining its lack of liability, claims regarding COVID-19 liability are more likely to be dismissed due to the claimant’s presumption of risk upon entry of the premises.  Therefore, unless a patron or employee is able to establish negligence, misconduct, or reckless or intentional infliction of harm, it is unlikely a claimant will prevail.

It should also be noted that the Act provides that failure to post warnings is not admissible evidence to prove a businesses liability in a COVID-19 liability claim.

What does this mean for employees?

Notwithstanding the enactment of this law, the GA Department of Public Health continues to recommend that employers and employees:

  • Use teleworking technologies to the greatest extent possible.

  • Stagger work schedules.

  • Consider canceling non-essential travel.

Additionally, businesses should also:

  • Hold larger meetings virtually, to the extent possible.

  • Arrange the workspace to optimize the distance between employees, ideally at least six feet apart.

  • Urge high-risk employees to stay home.

  • Urge employees to stay home when they are sick and maximize flexibility in sick leave benefits.

  • Follow CDC guidance for community events and groups.

Stay Safe Everyone; We Are In This Together.

FAQ Series: Is Covid-19 A Disability?

May 11, 2020

As of May 11, 2020, the Equal Employment Opportunity Commission (EEOC) has not stated that covid-19 is a disability under the Americans with Disabilities Act (ADA).

Therefore, an employee who contracts covid-19 is not entitled to protections under the ADA including reasonable accommodations, freedom from discrimination, harassment and retaliation on that basis alone unless that employee also has a disability or is part of another protected class under other federal or state statutes.