New EEOC Guidance Focuses on Easing COVID-19 Related Retaliation

The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its COVID-19 technical assistance guidance to include more information about employer retaliation in pandemic-related employment situations.

The updated guidelines provide clarification on the rights of employees and job applicants who believe they were retaliated against for engaging in protected activities under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and other equal employment opportunity (EEO) laws.

In a quote, EEOC Chair Charlotte Burrows stated, “The COVID-19 pandemic has created new situations and additional challenges, but it is no excuse to retaliate against people for opposing employment discrimination.”

The EEOC outlined that protected activity can take multiple forms, including:

The filing a discrimination charge
Bring up a complaint to a supervisor about co-worker harassment
Requesting accommodations related to a disability or a sincerely held religious belief
Witnessing discrimination and attempting to assist affected workers

At a time when many employers are not completely aware of the various scenarios where EEO laws are connected to COVID-19, staying informed can help companies remain in legal compliance during our current landscape.

What Activity is Protected?

Employees and job applicants have the right to work free from discrimination based on age, disability, national origin, race, religion, sex and other protected characteristics. Additionally, employers may not punish workers for asserting their right to be free from employment discrimination.

The EEOC stated that “speaking out about or exercising rights related to workplace discrimination is called ‘protected activity.’” The updated guidance includes examples of prohibited COVID-19-related retaliation including:

Requesting extended telework as a disability-related accommodation
Requesting religious accommodations, such as the use of modified protective gear that can be worn with religious apparel
Complaining that a supervisor unlawfully disclosed confidential medical information (such as a COVID-19 diagnosis)
Participating in an EEO complaint process

The EEOC also stated that “requests for accommodation are a protected activity even if the individual is not legally entitled to accommodation, such as where the employee’s medical condition is not ultimately deemed a disability under the ADA or where accommodation would pose an undue hardship.”

What Actions Constitute Unlawful Retaliation?

Employers can take disciplinary action against employees for several legitimate reasons. For instance, attendance or performance issues or misconduct are all legitimate reasons for taking actions that might otherwise be labeled as retaliation, if the employer can prove it would still have taken the same action regardless of the protected activity engaged in by the employee.

The EEOC also went on to state in this matter that “similarly, an employer may take nonretaliatory, nondiscriminatory action to enforce COVID-19 health and safety protocols, even if such actions follow EEO activity [such as] an accommodation request.”

Additional retaliation actions may include the following:

Denial of a promotion or job benefits
Refusal to hire
Suspension or dismissal
Work-related threats or warnings
Negative or lowered evaluations
Transfers to less-desirable work or work locations

With that being said, minor annoyances and trivial punishments likely would not be considered retaliatory. However, actions that have no tangible effect on employment or occur outside of work could be considered retaliatory if they might deter a reasonable person from exercising EEO rights.

Lastly, in order to bring a retaliation claim, the EEOC stated that the employee’s underlying discrimination claim does not have to be successful or timely.

How Vaccination Accommodation Requests are Handled

The EEOC has said the federal anti-discrimination laws it enforces do not prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. However, employers that encourage or require vaccinations have to consider providing reasonable accommodations when employees refuse to get vaccinated for medical reasons such as a pregnancy or sincerely-held religious belief, unless doing so would cause undue hardship for the business.

In the event an employee refuses to obtain a COVID-19 vaccine for a protected reason, the employer should engage in what the ADA calls an “interactive process” (essentially a dialogue with the employee) to determine if a reasonable accommodation can be made.

Reasonable accommodations for workers who cannot get vaccinated may include the following:

Working remotely
Weekly COVID-19 testing
Masking and physical distancing
Moving the employee to a private workspace
Transferring the employee to a position that does not require interaction with the public or other employees

With that being said, if concerns are raised by employees, it is in the employer’s best interest to notify employees of such accommodations and the process for requesting them.