EEOC Expands Employer Guidance on COVID-19
Applies to: All Employers
Effective: November 17 and December 14, 2021
The U.S. Equal Employment Opportunity Commission (EEOC) added a new Section M (Retaliation and Interference) and Section N (COVID-19 and Disability) to its “What You Should Know” publication for COVID-19 guidance. The EEOC has updated this publication about 20 times throughout the pandemic, and the list continues to grow.
Section M – Retaliation and Interference
Job applicants and current and former employees are protected from retaliation when asserting their rights under federal EEO laws, such as:
- Filing a charge, complaint, or lawsuit (regardless of whether the underlying discrimination allegation is successful or timely);
- Reporting alleged EEO violations to a supervisor or answering questions during an employer investigation;
- Resisting harassment, intervening to protect coworkers from harassment, or refusing to follow orders that would result in discrimination; and
- Requesting an accommodation of a disability or religious belief, practice, or observance (regardless of whether the request is granted or denied).
Prohibited retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity; the individual does not have to be actually deterred from asserting their rights. Of particular note, the EEOC says that retaliation could 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.” However, retaliation typically does not include a petty slight, minor annoyance, or trivial punishment, depending on the circumstances. The EEOC was clear to indicate that engaging in protected EEO activity does not prevent employee discipline for legitimate reasons, such as poor performance, low productivity, misconduct, or safety violations.
The Americans with Disabilities Act (ADA) also prohibits “interference” with an individual’s exercise of ADA rights, such as through coercion, intimidation, and threats, or an individual helping others exercise their ADA rights. A violation may occur even where a threat is not carried out or the employee is not deterred from exercising their rights.
Section N – COVID-19 and Disability Under the ADA
Various post-COVID conditions, where individuals experience new, returning, or ongoing health problems four or more weeks after being infected with COVID-19, may be considered .
The effects of COVID-19 or post-COVID conditions may qualify an individual for ADA protection if they have, or have a record of, a physical or mental impairment that “substantially limits one or more major life activities,” even if the impairment comes and goes, or if they are “regarded as” disabled because of COVID-19, regardless of whether they actually are impaired. Someone who has COVID-19 but is asymptomatic, or someone whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—are not considered disabled within the meaning of the ADA.
Individuals must meet either have an actual or record of disability to be eligible for a reasonable accommodation; individuals who are only regarded as being disabled are not entitled to receive reasonable accommodation. When the disability or need for accommodation is not obvious or already known, an employer may ask the employee to provide reasonable documentation about disability and/or need for reasonable accommodation. Typical exceptions may apply for an employer’s undue hardship, when there is no need for accommodation, where someone is not qualified for the job, or if the individual poses a direct threat to the health and safety of themselves or others in the workplace.
Action Items
- Review ADA processes for compliance.
- Have appropriate personnel trained on ADA requirements.