Katie A. Collins in Law360: Employer Duties As Pandemic, Caregiver Law Evolve
July 12 2022
This article was first published on Law360 on July 11, 2022. Reprinted by permission.
For many of us, the pandemic has changed where we work, how we work and the things we are juggling while we work since March 2020. The number of individuals who are acting as caregivers while also working full-time or part-time jobs outside of the house is at an all-time high.
Caregiving responsibilities extend to spouses and children, parents and other older family members, and relatives with disabilities.
California employers are left questioning (1) what they are obligated to do for employees who also act as caregivers, and (2) what they may want to do for employees who also act as caregivers in order to promote recruitment, retention and work-life balance.
What Employers Are Obligated to Do
San Francisco employers must abide by the Family Friendly Workplace Ordinance.
Employers’ obligations toward employee caregivers can vary by jurisdiction. For instance, employers that have employees in one of California’s largest cities, San Francisco, are subject to the San Francisco Family Friendly Workplace Ordinance.
The FFWO — which became operative Jan. 1, 2014 — gives certain employees the right to request flexible or predictable work arrangements to assist with caregiving responsibilities.
On March 14, the city of San Francisco amended the FFWO. The amendments will go into effect July 12.
The FFWO applies to all employers with 20 or more employees, if the employees (1) are “employed in San Francisco; (2) have been employed for six months or more by their current employer; and (3) work at least eight hours per week on a regular basis.”
Notably, the amendments expand the protections to those who telework. The amended FFWO requires employers to provide employees with a flexible or predictable work arrangement for qualifying caregiving responsibilities upon request by the employee, unless doing so would cause the employer undue hardship.
The FFWO defines undue hardship as a “significant expense or operational difficulty when considered in relation to the size, financial resources, nature, or structure of the [e]mployer’s business.
Under the FFWO, protected caregiving includes care of (1) a child or children under the age of 18, (2) a person with a serious health condition in a family relationship with the employee, or (3) any person age 65 or older who is in a family relationship with the employee.
“Family relationship” is defined as “a relationship in which a [c]aregiver is related by blood, legal custody, marriage, or domestic partnerships … to another person as a spouse, domestic partner, child, parent, sibling, grandchild, or grandparent.”
Requests for flexible or predictable work arrangements may include changes to:
- The number of hours the employee is required to work
- The times when the employee is required to work;
- Where the employee is required to work;
- Work assignments or other factors; or
- Predictability in a work schedule.
Employers must refrain from unlawful discrimination as outlined in March guidance from the EEOC.
On March 14, the U.S. Equal Employment Opportunity Commission released a new technical assistance guidance document addressing caregiver discrimination under federal employment discrimination law.
The guidance reiterates that employers may not discriminate against applicants or employees under federal law on the basis of protected classes such as sex, including pregnancy, sexual orientation or gender identity; race; color; religion; national origin; age; disability or genetic information.
Employers may also not discriminate against applicants or employees for their association with an individual with a disability, or on the race, ethnicity or other protected characteristic of the individual for whom they provide care.
The purpose of the guidance is to illustrate how discrimination on the basis of a protected class can occur, possibly even inadvertently, if employers make assumptions and decisions based on applicants or employees’ caregiving obligations.
The guidance makes clear that it would violate the law if an employer made hiring or promotion decisions based on improper assumptions — for example, that because an employee is female, she would be focused primarily on her caretaking responsibilities and not her job.
The guidance goes on to explain that employers also may not penalize female employees more harshly than similarly situated male employees for absences or missed deadlines due to caregiving duties.
Likewise, it would be unlawful for an employer to deny men leave or permission to work a flexible schedule to care for a family member or to handle other caregiving duties if the employer grants such requests when made by similarly situated women.
Common stereotypes or biases about caregivers that may result in unlawful conduct
- Assuming that female workers’ caretaking responsibilities will interfere with their
ability to succeed in a fast-paced environment;
- Assuming that female workers who work part-time or take advantage of flexible work
arrangements are less committed to their jobs than full-time employees;
- Assuming that male workers do not, or should not, have significant caregiving
- Assuming that female workers prefer, or should prefer, to spend time with their
families rather than time at work;
- Assuming that female workers who are caregivers are less capable than other
- Assuming that pregnant workers are less reliable than other workers.
Importantly, the EEOC’s guidance makes clear that the federal laws enforced by the EEOC do not provide employees with a right to accommodations to handle caregiving duties.
Nevertheless, other reasonable accommodation laws under the Americans with Disabilities Act and state laws still apply if an employee has his or her own disability or medical condition — including pregnancy, childbirth or related medical conditions — that affect the employee’s ability to perform the essential functions of the job.
Where required, employers must provide leave for covered caregiving purposes under the Family and Medical Leave Act and California Family Rights Act.
Employees with caregiving responsibilities may have a right to leave for covered caregiving purposes under the Family and Medical Leave Act and/or the California Family Rights Act.
Under the FMLA and the CFRA, eligible employees are entitled to take up to 12 weeks of unpaid family or medical leave within a 12-month period under the following conditions:
- The employee has been employed with the company for a total of at least 12 months
prior to the commencement of leave, and the 12 months of employment must have
accumulated within the previous seven years;
- The employee has worked at least 1,250 hours during the previous 12-month period
before the need for leave; and
- For purposes of FMLA but not CFRA leave, the employee is employed at a work site
where there are 50 or more employees within a 75-mile radius.
Leave may be taken for one or more of the following reasons:
- The birth of the employee’s child, or placement of a child with the employee for
adoption or foster care — known as baby-bonding leave — under both the FMLA and
- For incapacity due to pregnancy, prenatal medical care or childbirth, under the FMLA
- For a serious health condition that makes the employee unable to perform his or her
job, under both statutes;
- To care for the employee’s family member who has a serious health condition, under
both statutes — but note that “family member” is defined differently under the FMLA
than it is under the CFRA;
- For “qualifying exigency” leave under both the FMLA and CFRA when an eligible
employee has a spouse, child or parent — or a domestic partner, under the
CFRA — who is on covered active duty or called to covered active duty status in
order to address certain qualifying exigencies under both the FMLA and CFRA; and
- Qualifying exigencies for which an eligible employee may take leave to attend
to include: military events and related activities; care of a parent incapable of
self-care; child care and related activities; financial and legal activities;
counseling; rest and recuperation; post-deployment activities for a period of 90
days following termination of a military family member’s active duty status;
and other events agreed upon by the employer and employee.
- Qualifying exigencies for which an eligible employee may take leave to attend
- For “covered service-member” leave when an eligible employee needs leave to care
for a spouse, son, daughter, stepson, stepdaughter, parent, stepparent or next of
kin in the armed services who is undergoing medical treatment, recuperation or
therapy, or is otherwise in outpatient status or on the temporary disability list for
certain serious injuries or illnesses under the FMLA only.
What Employers May Choose to Do
Even where not required, employers may want to consider providing employees with flexible work arrangements. Flexible work arrangements have been known to promote satisfactory work-life balance, reduce absenteeism, reduce costs, enhance employee productivity, and aid recruitment and retention efforts.
Employers may offer flextime programs.
Flextime policies permit employees to vary the times of day during which they work. An example is a working parent who comes in to work early at 7:30 a.m., but leaves work by 3:30 p.m. to pick his children up from school, make dinner and put them to bed, and then logs back in to work remotely for an additional hour in the evening.
Another example would be the adult child who does not start her workday until 10 a.m. because she takes her mother to cancer treatment each morning, but who finishes her workday at 6:30 p.m., with a 30-minute lunch.
Employers may offer telecommuting or work-from-home options.
Telecommuting or work-from-home policies allow employees to work remotely rather than coming in to a physical office location to work.
Employers may provide some employees the ability to entirely telecommute or work from home where feasible, or provide employees an opportunity to maintain a hybrid schedule — working some days at home and others in the office.
Telecommuting options are viewed particularly favorably by employees who are also caregivers, as these policies allow employees to eliminate standard commute time and offer them more flexibility in scheduling caregiver obligations while also putting in the required work hours remotely.
In sum, while San Francisco seems to be the only jurisdiction requiring that employers provide flexible or predictable work arrangements, employers should consider whether it is feasible to provide flexible work arrangements to their employees, even where not required.
Regardless, employers are prohibited from discriminating against applicants and employees on the basis of a protected class. This is true even if such discrimination is inadvertent, when an employer makes assumptions and decisions based on an applicant or employee’s caregiving obligations.
Further, employers must provide leave for covered caregiving purposes under the FMLA and CFRA where required.
 AARP Research Report – Caregiving in the U.S. (May
 Family Friendly Workplace Ordinance, San Francisco Administrative Code Chapter 12Z.
 EEOC-NVTA- 2022-1 – TA on the COVID-19 Pandemic and Caregiver Discrimination,
issued March 14, 2022; https://www.eeoc.gov/laws/guidance/covid-19-pandemic-andcaregiver-discrimination-under-federal-employment.
 29 U.S. Code section 2611, et seq.
 Cal. Gov’t Code sections 12945.1, 12945.2, and 19702.3.
 SHRM (Society for Human Resource Management) Foundation’s Effective Practice Guidelines Series – Leveraging Workplace Flexibility for Engagement and Productivity (2014); https://www.shrm.org/hr-today/trends-and forecasting/special-reports-and-expertviews/documents/leveraging-workplace-flexibility.pdf.