As the pandemic continues into 2021, many employers are contending with their workers’ significantly increased caregiving responsibilities.  Parents – many without viable day care or other childcare options – must try to balance work with the challenges of caring for their children and overseeing their education (and entertainment). Other employees find themselves at the forefront of caregiving for sick family members and for family members at high risk for serious illness, if they become infected by COVID-19.

Recent data has revealed the disproportionate impact that the pandemic has had on women both at home and at work.  The widely cited September U.S. Department of Labor report of unemployment statistics show that four times the number of women than men have left the workforce since the pandemic. A recent McKinsey Report found that during the pandemic one in four women are considering downshifting their careers or leaving the workforce entirely.  These statistics have material economic and societal consequences not only to the affected women, but also to their employers and to the economy at large.

To address these issues, employers are looking for creative ways to help prevent the loss of productive workers, including the following:

  • Workforce Policies and Benefits. To assist in addressing the new challenges facing their workforces, many employers are reevaluating employment policies as to remote working, flexible work options, additional leave time, while doing their best to comply with various federal, state and local sick time, family leave, and COVID-related leave laws.  In addition, many companies are considering contracting with vendors to provide back-up care, adding resources for caregiver support, providing on-site support for returning workers (and their children), and internal and external outreach to workers to maintain open lines of communication between employers and workers.  With the necessity for social distancing, as well as other concerns facing many employers, in-person resources and on-site caregiver support are not likely to be a viable option.
  • Financial Support. Financial support may be a viable alternative for some employers.  For example, it may be possible for employers to provide qualified disaster relief payments under Section 139 of the Internal Revenue Code to provide additional caregiver assistance on a tax favored basis.  Relatedly, employers can consider establishing a PTO leave donation program or PTO buy-sell program to provide additional leave time to workers who are caregivers.
  • Workplace Culture. Employers may also wish to assess how the culture of the workplace may be affecting their workers.  While the notion of a standard work day is engrained in the DNA of many employers, with the current crisis employers may wish to rethink their schedules and on-call culture.  It may be possible to establish a standard or acceptance of working hours that allows caregivers to address caregiving responsibilities without needing (or feeling the need) to be “on-call” during all hours of the standard workday.  Some employers, for example, have adopted a “no-meeting Fridays” policy.
  • Employee Performance. Employers need to act with care when addressing performance related issues that may be caused by an employee’s increased caregiver responsibilities.  In such instances, employee claims could be framed around allegations of sex, caregiver, or age discrimination (or other similar discrimination claims) as caregivers may consist primarily of women, and older populations may be saddled with greater health issues, necessitating time off or longer periods of remote work.  At the same time, employers should avoid making presumptions about an employee’s ability to take on an assignment because of caregiver responsibilities.  A manager who gives better assignments to those without caregiving responsibilities may give rise to a discrimination claim, even though the assignment was made with good intentions.  Further, employers should be mindful of family leave rights that employees may have under the FMLA and applicable state law.

Given the complex challenges facing workers with increased caregiver responsibilities because of the pandemic, employers should consider creative approaches and the best fit for their organization and workforce, and give due and careful consideration to adverse employment decisions affecting caregivers.

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