Most of the job news around the COVID-19 pandemic has focused on layoffs—and rightly so, given the high unemployment rates. But a less-visible problem has been the workers who were fired for reasons connected to the pandemic. Depending on the circumstances, some of them may be able to sue their former employers for what’s known as “wrongful termination” or “wrongful discharge.”
Most employment is “at will,” which means that your employer doesn’t need a reason to fire you. However, some reasons for firing employees are illegal. This article discusses some of the most common reasons workers have been fired during the COVID-19 pandemic—and looks at which ones might amount to wrongful termination.
If you have to miss work for certain reasons related to COVID-19, you may have the right to take a leave under two federal laws:
Some states have family and medical leave laws that are more generous than federal law.
Your employer may not fire you while you’re out on FMLA leave, as long as you haven’t gone over the time limit. It’s also illegal to fire you just because you requested or took a leave under either federal or state law.
You may have legal protections under the Americans With Disabilities Act (ADA) if it wouldn’t be safe for you to work at your normal job site because of a medical condition that makes you more vulnerable to COVID-19. Your employer must provide you with a reasonable accommodation—such as allowing you to work remotely or changing the configuration of your workspace—as long as that wouldn’t cause undue hardship or interfere with your ability to do your job. You might have a claim for illegal disability discrimination if you were fired rather than allowed a reasonable accommodation.
Even though people over 65 are also more likely to get seriously ill from COVID-19, age isn’t considered a disability under the ADA. That means your employer doesn’t have to make special accommodations for you just because you’re older. However, it would be illegal age discrimination for your employer to let you go because your age makes you more vulnerable to the virus.
Can you be fired for having COVID-19? Not if you’re still on leave (as discussed above). But what if you could return to work but still have symptoms or still test positive? Even though a serious case of the disease would probably be considered a disability, the ADA doesn’t require accommodations for employees who pose a direct threat to the health of coworkers. However, if you could do your job from home—which wouldn’t endanger other employees—it could very well be illegal to fire you.
You might have a claim for wrongful termination if you were fired because you complained about your employer's failure to provide personal protective equipment (PPE), like face masks, or to take other measures to minimize the spread of COVID-19 at your workplace. Several state and federal laws (often called "whistleblower" statutes) protect employees from retaliation for raising health and safety concerns.
Under the federal Occupational Safety and Health (OSH) Act (as well as many state laws), employers must provide workplaces that are free of recognized hazards—and it’s illegal to fire employees because they reported or complained about unsafe working conditions.
The federal National Labor Relations Act (NLRA) also protects workers from retaliation for complaining about unsafe work conditions. However, the NLRA doesn't allow workers to enforce the law through a private lawsuit; instead, the National Labor Relations Board may require employers to pay fines, correct dangerous conditions, or reinstate workers who've been fired in violation of the law.
Under the OSH Act, you also have the right to refuse to work under dangerous conditions. However, you’re protected from termination for taking this step only if:
It's not clear whether courts would consider a risk of exposure to COVID-19 as an imminent danger. Even if they did, it would be challenging to meet all of these conditions. For instance, it would probably be legal for your employer to fire you if you didn’t want to come back to your workplace after shutdown orders were lifted, simply because you were worried about contracting the virus from coworkers. (And you could lose any unemployment benefits that you were receiving while your workplace was shut down.)
In some states, you may be able to sue for what’s known as “constructive” wrongful termination if you were essentially forced to quit because your employer refused to take reasonable measures to protect you from a high risk of exposure to COVID-19. For instance, California recognizes this form of wrongful termination when your employer intentionally created or knowingly allowed working conditions that violated public policy (such as laws requiring a safe work environment) and were so intolerable that any reasonable person in your position would have quit.
It’s illegal for your employer to fire you for refusing to commit an illegal act—like coming to work in violation of an order in your state, city, or county that ordered all nonessential businesses to shut down during the COVID-19 pandemic.
Under state workers’ compensation laws, it’s also illegal to fire you in retaliation for filing a workers’ comp claim—regardless of whether you're ultimately able to receive workers’ comp benefits for COVID-19.
If you believe that you lost your job for an illegal reason, you should speak with an employment attorney about your legal options. The COVID-19 pandemic has raised many complicated legal issues that don’t yet have settled answers. But a lawyer who’s experienced in this area should be able to explain how the law might apply to your situation, whether you have a valid claim for wrongful termination, and the amount of damages you might expect to receive.
It may help to know that lawyers usually work on a contingency basis in wrongful termination cases, which means that they’re paid a percentage of any amount you receive in a settlement of court award—and they aren’t paid if you don’t win anything. (See the results of a survey on typical fees charged by wrongful termination lawyers and typical settlements.)