By Deborah Hopkins, April 11, 2022

Last fall, in the first filing of its kind, the EEOC filed a lawsuit against a private sector company for COVID-related harassment. According to EEOC’s press release, “the pharmacy discriminated against a pharmacy technician with asthma who asked to wear a face mask at work as an accommodation of his disability immediately following the COVID-19 outbreak to help protect him from the virus. The employee was harassed because he requested this accommodation and was sent home twice when he asked to wear a mask, and then taunted and humiliated for questioning management’s policy prohibiting masks, leading him to quit…”

Mask mandates are being lifted all around the country, and COVID cases continue to drop. However, your agency needs to be aware that the potential for discrimination, harassment, and reprisal related to COVID is far from over. Your agency’s job is to prevent that from happening in the first place, or to take immediate, effective corrective action if it discovers such mistreatment has occurred.

It’s probable that every theory of discrimination has been implicated since this pandemic began more than two years ago. Here are a few examples of areas where there could be potential liability if the agency or its employees do not respond according to the law:

  • Employee requests telework as an accommodation because he is at high risk for severe symptoms of a COVID infection
  • Employee chooses to wear a mask or to continue to socially distance after mask mandates are lifted because she has underlying medical conditions that rise to the level of a disability
  • Employee reveals to supervisor he could not be vaccinated against COVID-19 for medical reasons, and the supervisor refuses to consider a promotion for that employee
  • Employee reveals to coworkers she could not be vaccinated against COVID-19 for religious reasons, and coworkers begin to ostracize the employee
  • Reprisal or harassment against employees who requested exemptions from the vaccine mandate as an accommodation, including verbal comments, disparate treatment, and more
  • Agency refuses to consider telework as an accommodation for employees who have been teleworking throughout the pandemic, and are now ordered to return to the worksite
  • Supervisor doesn’t allow an employee to return to the physical workplace because the employee has a known disability the supervisor believes makes the employee susceptible to more severe COVID, even though the employee is willing and able to work within their medical restrictions
  • Asian American and Pacific Islander (AAPI) employees are harassed or discriminated against over the origin of the virus
  • Harassment in a virtual or telework environment

There’s a lot to consider as we start to discover what the Federal workplace will look like in the near future. Join FELTG for the 60-minute webinar The Changing Nature of Hostile Work Environment Claims on May 19 and learn how handle these new types of harassment to ensure a safe and productive work environment for your employees.

Or, let us know if you’d like us to present a training session to your agency attorneys, LR/ER specialists, EEO professionals, supervisors or employees. We’re happy to help. [email protected]

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