The latest series of Covid-19 news is discomfiting. The Biden administration is fighting in court for its vaccinate-or-test mandate. Europe, Asia, and parts of the U.S. are suffering from a heavy uptick in “Delta” variant Covid-19 illnesses that are starting to look as bad as late 2020—most gravely among the unvaccinated. And we continue to burn through the Greek alphabet with the advent of the potentially far more virulent Covid-19 “Omicron” variant.
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 November 17, 2021, the EEOC updated its Technical Assistance Questions and Answers to address employee protection from retaliation in connection with Covid-19. This new guidance, while nominally stated in the Covid-19 context, only 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.
- Standard for Retaliation: 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.”
- Employers Can Still Discipline: The new guidance is not meant to stop legitimate employer disciplinary action. But that is small comfort without situation-specific conferral with an employment lawyer or HR professional.
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. 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. Instead, it gives 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 (including pregnancy, sexual orientation, and gender identity), national origin, religion, age (40 or over), disability, or genetic information.”
- For example: An employer rolls out a mandatory vaccine, testing, or vaccine reporting policy, 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.
- Or another example: An employee claims a disability or religious exemption from a mandatory vaccine policy. 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 close 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.
To see the depth of the rabbit hole of federal retaliation standards, the EEOC’s 2016 Enforcement Guidance on Retaliation 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. While in Chicago, employers cannot retaliate against an employee because they did get vaccinated.
The answer to retaliation liability is proactive risk management: Following a notice-opportunity-training regime to address performance issues; not always treating misconduct the same as performance; documenting disciplinary action and performance reviews; and conferring with HR professionals or employment counsel about sensitive disciplinary and timing issues—to name a few of many approaches to consider.