EEOC Guidance on COVID-Related Retaliation, Dec. 16, 2021

The EEOC has updated its COVID-19 guidance to provide employers with information about retaliation against employees who exercise their rights related to COVID safety and vaccination. These aren't new rules, but simply remind employers that job applicants, current employees and former employees are legally protected from retaliation by employers if they assert their rights under an anti-discrimination law. In other words, employees are protected if they file a complaint alleging harassment or discrimination, or request reasonable accommodation because of a disability or sincere religious belief (regardless of whether the accommodation is granted). The EEOC guidance notes that retaliation could include any type of action that would reasonably deter a person from exercising their rights. The EEOC also notes that legitimate disciplinary action remains permitted, even if the employee has asserted rights under an anti-discrimination law in the past. Further, employers are permitted to continue taking non-discriminatory and non-retaliatory action to enforce COVID-19 safety protocols, even if an employee has requested accommodation or otherwise exercised their rights. For more information on EEOC guidance and vaccine incentives, see Q 8897.