On November 17, 2021, the EEOC updated its technical guidance on COVID-19 and anti-discrimination with a new anti-retaliation section.

The new section largely restates existing statutory anti-retaliation protections in the context of COVID-19.  The guidance provides several examples of COVID-related protected activity, which include filing a charge with the EEOC alleging that an employer has unlawfully disclosed confidential medical information (such as a COVID-19 diagnosis), informing a supervisor or HR representative of accusations that Asian coworkers are spreading COVID-19, or reporting harassing comments toward coworkers who remain unvaccinated for religious reasons.  Employers may not retaliate against employees for requesting continued telework as a disability accommodation, or for requesting protective gear that can be worn with religious garb.  Making such requests is protected, even if the requests are later denied; for instance, if the employer determines that the employee does not have a disability under the ADA, or where the requested accommodation would pose an undue hardship.

The guidance reiterates that an employer’s action constitutes retaliation if it could deter a reasonable person from engaging in protected activity.  Retaliatory acts may include 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 location.  However, employers are permitted to take adverse action based on non-retaliatory and non-discriminatory reasons, such as poor performance or misconduct.

In sum, the EEOC’s updated guidance cautions employers to be mindful of their non-discrimination and anti-retaliation policies in navigating ever-changing federal, state, and local COVID-19 regulations, lest they run afoul of the ADA or other antidiscrimination statutes.

Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and co-head of the firm’s Whistleblowing & Retaliation Group. Steven’s practice focuses on defending complex employment litigation involving claims of discrimination, harassment and retaliation; wage-and-hour laws; breach of employment contract…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and co-head of the firm’s Whistleblowing & Retaliation Group. Steven’s practice focuses on defending complex employment litigation involving claims of discrimination, harassment and retaliation; wage-and-hour laws; breach of employment contract; and restrictive covenants (e.g., non-competition agreements). Steven is also at the forefront of defending whistleblower retaliation claims, and routinely conducts investigations arising from whistleblower reports. He has successfully tried cases to verdict in Illinois, Florida and California, and defended what is reported to be the largest Illinois-only class action in the history of the U.S. District Court for the Northern District of Illinois. He has also testified in defense of his investigations in federal court.

Photo of Pinchos Goldberg Pinchos Goldberg

Pinny Goldberg is an associate in the Labor & Employment Law Department. Pinny represents employers in a broad array of matters before federal and state courts, FINRA and other arbitration panels, and administrative agencies, including the EEOC and its state equivalents, and in…

Pinny Goldberg is an associate in the Labor & Employment Law Department. Pinny represents employers in a broad array of matters before federal and state courts, FINRA and other arbitration panels, and administrative agencies, including the EEOC and its state equivalents, and in pre-litigation negotiations. Matters he works on include discrimination and harassment, wage and hour, wrongful discharge, whistleblowing and retaliation, covenants not to compete, breaches of fiduciary duty, unjust enrichment, and tort and contract claims.

In addition to handling litigation and dispute resolution, Pinny regularly advises clients on a wide variety of employment issues, including drafting, reviewing and revising handbooks and workplace policies. He also addresses questions and concerns related to hiring, wage and hour issues, employee leave, performance problems, terminations of employment, and separation agreements and releases.

Photo of Scott Tan Scott Tan

Scott Tan is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Scott earned his J.D. from the UCLA School of Law, where he served as a problem developer and member of…

Scott Tan is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Scott earned his J.D. from the UCLA School of Law, where he served as a problem developer and member of the Moot Court Honors Board. He also worked as a research assistant for Dean Jennifer Mnookin and Professor Hiroshi Motomura.