On November 17, 2021, the US Equal Employment Opportunity Commission (EEOC) posted updates to their expanded COVID-19 technical assistance related to COVID-19. It now provides additional information about employer retaliation in pandemic-related employment situations.
The updates explain and clarify the rights of employees and job applicants who believe they suffered retaliation for protected activities under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, and other employment discrimination laws. The technical assistance helps to explain how these rights are balanced against employers’ needs to enforce COVID-19 health and safety protocols.
Significant updates to the COVID-19 technical assistance include:
- Job applicants and current and former employees are protected from retaliation by employers for asserting their rights under any of the EEOC-enforced anti-discrimination laws.
- Protected activity can take many forms, including filing a charge of discrimination; complaining to a supervisor about coworker harassment; or requesting accommodation of a disability or of a religious belief, practice, or observance, regardless of whether the request is granted or denied.
- Additionally, the ADA prohibits not only retaliation for protected equal employment opportunity (EEO) activity, but also “interference” with an individual’s exercise of ADA rights.
EEOC Chair Charlotte A. Burrows stated, “Retaliation is the most frequently alleged form of discrimination in the EEOC’s charges overall and has been at the top for too many years. The COVID-19 pandemic has created new situations and additional challenges, but it is no excuse to retaliate against people for opposing employment discrimination. This updated technical assistance provides additional clarity on how our laws balance workers’ rights to speak up without fear of retaliation against employers’ responsibilities to create a healthy and safe work environment.”
The EEOC technical assistance on employment and COVID-19 has been updated approximately 20 times throughout the pandemic.
The most recent update to the EEOC’s COVID-19 technical assistance can be accessed here.
Compliance Perspective
Issue
Employers must provide employees with assurances that reporting wrongdoing will be a protected action. Fear of retaliatory firing is a very real concern for employees. Investigations should be conducted fairly and consistently to verify any claims of wrongdoing. At the conclusion of an investigation, the employee should be made aware that wrongdoing was substantiated or not substantiated. Every company must have a zero-tolerance policy for anyone who retaliates against an employee for bringing an issue of wrongdoing to the company’s attention.
Discussion Points
- Review your policies and procedures for prevention of retaliation. Ensure that the policy is up-to-date and revise if needed.
- Ensure that all staff are aware of your company’s policy for non-retaliation and the steps the employees should take if they suspect wrongdoing. File signed training documents in each employee’s education file.
- Periodically audit to ensure that all employees are aware of the steps they should take if they suspect that they or their coworkers have experienced retaliation and their awareness of the compliance hotline.
