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...
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