This article originally appeared in Law360 on December 2, 2021. It is republished here with permission.

The U.S. Equal Employment Opportunity Commission's COVID-19 technical guidance was first published in March 2020 and has been periodically updated throughout the pandemic to address new issues such as vaccine mandates.

The most recent update tacks on retaliation guidance — making clear that existing equal employment opportunity retaliation principles apply equally in the COVID-19 context as elsewhere. The update gives employers an opportunity to reprise some fundamental risk management practices.

The latest series of COVID-19 news is discomfiting. The Biden administration is fighting in court for its vaccinate-or-test mandate.¹ Europe, Asia and parts of the U.S. are suffering from a heavy uptick in delta variant COVID-19 illnesses² that are starting to look as bad as the numbers from late 2020³ — most gravely among the unvaccinated. And we continue to burn through the Greek alphabet with the advent of the potentially far more virulent omicron variant.⁴

In that environment, employers are beset with the continual (and it would seem, the correct) message: You need to mandate vaccination, or at least, create an environment where it is incentivized and expected as the obviously right thing to do.

So, it is notable that on Nov. 17, the EEOC updated its technical guidance⁵ to address employee protection from retaliation in connection with COVID-19.

The EEOC's Update

This new guidance, nominally stated in the COVID-19 context, summarizes existing standards for retaliation claims.

Protected Activity

Protected employee activity can take many forms — such as making a complaint or filing a charge, even if untimely or unsuccessful; reporting violations or giving adverse answers in an investigation; intervening to protect coworkers; and requesting disability or religious accommodations.

In fact, the full list of what's actually protected at law is far longer than the new guidance.

Protected People

Employees and job applicants are protected, regardless of part-time or other status. Even prospective and former employees are protected from unlawful retaliation.

Retaliation Standard

According to the EEOC guidance, retaliation includes tangible actions such as "denial of promotion or job benefits, non-hire, suspension, discharge, work-related threats, warnings, negative or lowered evaluations, or transfers to less desirable work or work locations."

But it also includes intangible actions that have no effect on work, or that even occur outside the workplace — so long as "it might deter a reasonable person from exercising EEO rights."

Discipline

The new guidance is not meant to stop legitimate employer disciplinary action. But that is small comfort without situation-specific risk management. More on that below.

The EEOC's Balancing Message

Curiously, nothing in the guidance mentions any COVID-19-specific scenarios or examples. As such, it looks like the new guidance was published as something of a general counterweight to employer ardor for COVID-19 prevention.

It does not (in any way) create a retaliation claim for lawful COVID-19 vaccine and testing policies, or for the normal outcomes of such policies, such as positive COVID-19 tests.

But it does seem to give employers the balancing message: Your employee complaining about employer discrimination is a protected right even in the COVID-19 context, so long as the complaint — whether about mandates, testing, social distancing or the rest — is still based on one or more protected classifications such as race, color, sex, national origin, religion, age, disability or genetic information.

For example: An employer rolls out a mandatory policy on testing, vaccination or vaccine reporting, but enforcement is much stricter as to one department made up largely of racial minorities, compared to another department that is not. Like with any otherwise permitted policy, discriminatory enforcement or administration creates liability risk.

As another example: An employee claims a disability or religious exemption from a mandatory vaccine policy. The employer denies the request without engaging in an interactive accommodation process.

The same kind of liability risks would obtain here as if the accommodation request was about shift scheduling or leave. It's just that vaccine policies bring disability and religious accommodation issues closely into focus.

Employees can be savvy about their rights, and retaliation claims can be among the most dangerous under equal protection laws. The most common evidence for such claims is timing — a complaint by an employee followed closely in time by disciplinary action or termination.

More to the point, the most common evidence for retaliation is circumstantial, and therefore far less susceptible to summary judgment. And, the protected complaint does not have to be well-founded to be protected — it just has to be based on a reasonable, good faith belief that the opposed employer action is unlawful or could become unlawful if repeated.

Retaliation Risk Management

The answer to retaliation liability is proactive risk management. Some considerations in this area include:

NOT Process

The baseline for all EEO risk management is to follow a notice-opportunity-training regime to address performance issues. Call it the NOT process, as in, "We're not going to screw up this disciplinary action."

Doing it right fosters employee accountability, morale and productivity. It also helps to set aside retaliatory motive.

When an employer has cycled multiple times through giving the employee fair notice of their performance problems with time to correct them — and help correcting them in the form of appropriate training — it generates a sense of known and established reasons for a termination.

That's heavy competition against the speculation of retaliatory motive.

Misconduct Versus Performance

Employers sometimes conflate the management of performance issues — which come with the NOT process, with that for misconduct — which is often subject to more immediate and severe disciplinary action. Making that distinction can help avoid retaliation claims before they arise.

Clients often call to confer about firing an employee just after an employee has engaged in protected activity — when the same employee's rank misconduct months ago would have easily justified termination or other preemptive disciplinary action before the protected activity occurred.

Timely Documentation

Employers would often win the timing argument around retaliation, if only they had contemporaneously documented their termination decision. In many cases, a savvy employee will sense that their termination is looming, and assert a complaint to human resources or the EEOC to push it off and create leverage.

Often in those same cases, the employer already made a firm decision to terminate prior to the protected activity. The timing of that termination decision can be a compelling defense — if it was documented when made.

Strategic Conferral

Avoiding retaliation claims can become something of a strategic game, with the employer looking for intervening grounds such as the above, in between the time of the protected activity and the time of termination. Management, especially immediate supervisors, are often unaware or out of touch with the sensitivity required to get it right.

Conferring with HR professionals or employment counsel before making significant employment decisions, is itself a form of proactive risk management.

Conclusion

To see the depth of the rabbit hole of federal retaliation standards, the EEOC's 2016 enforcement guidance on retaliation⁶ reinforces and greatly expands on all the above.

There are also city- and state-level retaliation rules to consider.

For example, in Florida, employers cannot take adverse action against an employee for refusing to get vaccinated pursuant to one of five statutory exemptions. Meanwhile, in Chicago, employers cannot retaliate against an employee because they did get vaccinated.

These conflicting approaches might serve as an example of full employment for employment lawyers and HR professionals. But they also underscore the need for proactive risk management. 

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The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

¹ https://www.foley.com/en/insights/publications/2021/11/considerations-employers--legal-challenges-osha.

² https://www.healthline.com/health-news/here-are-the-states-where-covid-19-is-increasing-2.

³ https://www.bloomberg.com/news/articles/2021-11-22/this-u-s-covid-wave-is-as-bad-as-last-november-s-in-some-spots 

⁴ https://www.nature.com/articles/d41586-021-03552-w.

⁵ https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada- rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_ter m=#M.

⁶ https://www.eeoc.gov/laws/guidance/questions-and-answers-enforcement-guidance-retaliation-and-related-issues.

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