COVID-19 issues seem to be destined to remain at the forefront of the workplace this holiday season. With holiday travel expected to lead to surges nationally, the elimination of the virus in the near future seems unlikely. A significant amount of federal guidance recently has related to the federal contractor and larger employer vaccination mandates. That being said, on November 17, 2021, the Equal Employment Opportunity Commission (EEOC) released additional parameters for addressing COVID-19 in the workplace, focusing on the issues of retaliation and interference. Here are a few takeaways:

1. Anti-discrimination protections extend to job applicants and former employees. The EEOC’s guidance emphasizes that prospective or former employees are protected from retaliation relating to COVID-19. Examples cited include requesting an accommodation related to COVID-19 during the interview process or near the end of an employee’s tenure. Employers should therefore make sure that each accommodation request is processed – and vetted – even if it seems easier not to address/improbable that it can be provided. In the case of a potential employee, an employer that fails to process a reasonable accommodation request and then denies the candidate the job (or even an interview) might be liable for retaliation.
2. The definition of retaliation in the context of COVID-19 is broad. Typically, retaliation has been held to include demotions, suspensions, and changes in work assignments that occur after a protected activity (such as forwarding a complaint about discrimination). The EEOC’s recent guidance clarifies that retaliation can also include: “an action that has no tangible effect on employment, or even an action that takes place only outside of work if it might deter a reasonable person from exercising EEO rights.” Employers should therefore be aware that comments or actions made outside of the workplace (i.e., on social media) relating to COVID-19 could be used to support a discrimination charge. Training management on how to interact with employees – inside and outside – of the workplace can be valuable.
3. Employers can still discipline or terminate based on legitimate non-discriminatory reasons. The EEOC clarifies that employers still have the latitude to make management decisions and based on non-discriminatory reasons (and should therefore not be stifled by discrimination laws). I would caution that management should clearly document any decision to discipline, demote, or not hire an employee/candidate that has exercised COVID-19 protections. A failure to do so exposes an employer to significant liability.

Feel free to reach out to me to discuss your organization’s approach to limiting exposure related to discrimination.