A San Diego account executive says she was fired from her insurance job because her children made noise during her business calls while working remotely. A fired worker is suing Wayfair for age and caregiver discrimination. COVID-19 has created complex workplace conditions, and many companies are struggling with lost productivity. But can employees be fired for excessive absences due to caregiving?
According to Amy E. Feldman, a lawyer specializing in employment issues at The Judge Group Inc., more than 400 COVID-related employment lawsuits were filed against employers between January 30, 2020 and February 9, 2021 on the basis of remote work or conflicts over leave entitlement.
“While the firings may seem clear-cut and justified to some employers, there are discrimination laws that may protect some employees, including those who cannot come to the office for some period of time who must be accommodated,” Feldman says.
We asked Feldman to unravel the laws protecting employers and explain employee rights when it comes to caregiver discrimination.
Discrimination laws protect workers
In order to be certain that federal or state laws are not violated when firing an employee, Feldman says this is what employers need to know:
- Protections and guaranteed paid leave under the Families First Coronavirus Response Act expired on December 31, 2020, so presently there is no federal law that specifically protects caregivers from negative job action related to their responsibilities as caregivers.
- There are some remaining protections for workers who believe they faced discrimination. Some states, including Alaska, Minnesota, and Delaware, as well as some cities like New York City and Washington, DC have laws that specifically prohibit caregiver discrimination.
- The Family and Medical Leave Act requires covered employers to provide up to 12 weeks of unpaid leave to qualified employees for their own serious health condition or to care for the serious health condition of a child or immediate family member, and prohibits retaliation against employees who avail themselves of its protections.
- In addition, Title VII of the Civil Rights Act prohibits employers from discriminating against an employee because of sex stereotyping. In other words, employers can’t assume that female employees will be likely to be a family caregiver who will be too distracted by their kids’ learning to be able to do the job.
- Other laws including the Age Discrimination in Employment Act and the Americans With Disabilities Act have also been included in claims against employers by employees who faced negative job consequences on the basis of their caregiving responsibilities.
Legal duty to make accommodations
Ultimately, an employer has the right to fire an employee who cannot perform the essential functions of his or her job, provided that there is no way for the employer to reasonably accommodate the employee’s need for flexibility without causing undue hardship on the company.
Jobs that require in-person service, like grocery store workers, for example, don’t really have the ability to provide flexibility, so if an employee is no longer able to go to work, it becomes much more difficult for an employee to prove he or she was wrongfully terminated.
In many cases though, particularly in office settings, virtual work is possible. In that situation, if a person who has been very successful in the past suddenly finds it difficult to continue to work in the same way because of new caregiving responsibilities, there are times when an employer has the legal duty to accommodate the needs of that employee/caregiver.
Actions can tarnish your reputation
The bottom line: When dealing with an employee whose personal or family medical needs require some flexibility, courts will look to see if the employer has done everything in its power to work with the employee to find a reasonable accommodation before taking the ultimate step of terminating the employee.
Know the law to avoid costly litigation but also know that firing an employee can tarnish brands and disengage employees. “The pandemic will end at some point, but your reputation will either be greatly helped or forever tarnished by the way you treat employees in need during this turbulent period in history,” Feldman says.
Flexibility delivers better results from staff
According to Regan Gross, HR Knowledge Advisor at SHRM, companies that adjust to employee caregiving needs are positioned to receive the best from their staff. “Employers who are able to adapt, provide flexible work schedules, telework and reprioritize work for employees with caregiver responsibilities are less likely to see failed projects, declined productivity and engagement, missed deadlines, and increased turnover.”
These employers will be much better poised to weather the COVID storm, and decrease complaints of caregiver discrimination. Managers should check in with their employees regularly, Gross recommends. “Find out if your staff has caregiver duties and then formulate a strategy based on their needs by providing them with your company’s caregiver options”
For more help navigating the new and complex world of work after COVID-19, visit our resoure center: The New Normal: work After COVID-19.
*Amy E. Feldman the General Counsel of the Judge Group, Inc., an international business solutions company, and she is also a nationally-syndicated legal correspondent with experience in employment law and sexual harassment defense.