Updated: Dec 22, 2022
You still have the right as an employee, even during a pandemic. Here's what to do if you are wrongfully terminated because of COVID-19.
Most of the reports surrounding the COVID-19 pandemic have centered on layoffs—and understandably so, considering the high unemployment rates. But a less-visible issue has been the workers who were wrongfully terminated for reasons related to the pandemic. Depending on the situation, some employees in California will be considering suing their previous employers for what's known as "wrongful termination".
Many jobs in California are "at will," which ensures that your employer doesn't need an excuse to terminate you. However, certain grounds for dismissing workers are unconstitutional and against the law. This article explores some of the most frequent reasons employees have been terminated since the COVID-19 pandemic—and looks at which ones could be considered wrongful termination.
Your Right to Days Off Work Because of COVID-19
If you have to skip work for any reason relevant to COVID-19, you have the right under the law to take up to 12 weeks of unpaid leave under the Family and Medical Leave Act (FMLA). Few states have parental and sick leave policies that are more generous than federal legislation.
Your company can not fire you if you're out on FMLA leave as long as you haven't exceeded the time limit. States with family and medical leave laws usually offer the same benefit. It's still illegal to terminate you only because you asked or took leave under either federal or state law.
Can You Be Terminated for Demanding a COVID-Related Disability Accommodation?
You could have legal rights under the Americans With Disabilities Act (ADA) if it weren't possible for you to work at your usual job site because of a medical condition that renders you more vulnerable to COVID-19.
Your employer should provide you with suitable accommodations—such as encouraging you to operate remotely or modifying your workspace layout—as long as it wouldn't cause unnecessary inconvenience or conflict with your ability to do your job. You could argue for illegal disability discrimination if you were dismissed rather than allowed a fair accommodation.
Even though employees over 65 are also more likely to get severely sick from COVID-19, age isn't considered a deficiency under the ADA. That means your employer doesn't have to make extra accommodations for you only because you're older. However, it would be unethical age discrimination for management to terminate you because your age made you more vulnerable to infection.
Can You Be Terminated in California for Getting Covid-19?
Not while you're actually on leave (as discussed above) (as discussed above). But what if you should go back to work but still have symptoms or test positive? And if a serious case of the disease may be called a disability, the ADA doesn't require accommodations for staff who pose a clear danger to colleagues' welfare. However, if you could do your work from home—which wouldn't risk other employees—it could very well be illegal to terminate you.
Will You Be Fired For Moaning About Lack of PPE or Other Unhealthy Conditions?
You could file for a wrongful termination lawsuit if you were fired because you protested your employer's inability to include personal protective equipment (PPE), including face masks, or take other steps to reduce the spread of COVID-19 at your workplace. Several California and federal regulations (often dubbed "whistleblower" statutes) shield workers from harassment for voicing health and safety issues.
Under the federal Occupational Safety and Health (OSHA) as well as certain California laws, employers must have workplaces that are free of known hazards—and it's wrong to fire workers because they reported or filed a complain regarding unsafe conditions in the workplace.
The federal National Labor Relations Act (NLRA) also safeguards employees against harassment complaints about unfair work practices. However, the NLRA doesn't allow employees to impose the law with a private lawsuit; instead, the National Labor Relations Board can order employers to pay fines, fix unsafe conditions, or reinstate workers who've been dismissed in violation of the law.
Can You Be Fired for Refusing to Work Due to the Danger of Contracting COVID-19?
Under the OSH Act, you will have the right to refuse to operate under unsafe circumstances. However, you're safe from wrongful termination in California only if:
you sincerely feel that the working conditions constitute an "imminent danger" (an urgent possibility of death or severe physical harm), and a rational individual will accept
you told management about the threat
the employer didn't fix the problem; and
the danger is so critical that there isn't time to inspect the Occupational Health and Safety Administration (OSHA).
It's unclear whether courts will view a chance of exposure to COVID-19 as an immediate threat. Even if they did, it would be difficult to satisfy any of these requirements. For starters, it would actually be legal for your manager to fire you if you didn't want to come back to your office after closure orders were lifted, merely because you were concerned about catching the virus from colleagues. (It's still not clear if you will be liable for unemployment compensation if you're fired for this reason; read all about unemployment benefits when you're fired.)
Constructive Unfair Termination: Should You Be Compelled to Resign Because of the COVID-19 Risk?
In certain states, you might be entitled to sue for what's known as "constructive" unfair firing if you were effectively compelled to resign because your boss failed to take appropriate action to protect you from exposure to COVID-19. California acknowledges this type of wrongful termination where your employer deliberately created or permitted working conditions that violated public policies that were so unacceptable that any fair person in your job would have left.
Will You Be Fired for Refusing to Operate in Breach of COVID-19 Emergency Orders?
It's unconstitutional for your boss to fire you for refusing to commit an illegal act—like going to work in defiance of an order in your state, city, or county that forced all nonessential companies to shut down during the COVID-19 pandemic.
Will You Be Fired for Filing a Workers' Comp Petition for COVID-19?
Under California workers' compensation rules, it's still unlawful to dismiss you in retribution for making a workers' comp claim—regardless of if you're eventually eligible to obtain workers' comp insurance for COVID-19.
Seeking a Legal Assistance for Wrongful Termination in California
If you feel that you were wrongfully terminated for an unlawful cause, you can talk with an employment lawyer in Los Angeles about your legal rights. The COVID-19 pandemic has posed several complex legal questions that don't yet have resolved solutions. But a wrongful termination attorney in Los Angeles should be able to clarify how the law could relate to your case and whether you have a legitimate argument for wrongful termination.
It may help to know that wrongful termination lawyers in Los Angeles usually work on a contingency basis in these types of lawsuits, which means that they're paid a percentage of any amount you receive in a wrongful termination settlement or court award—and they aren't paid if you don't win anything.
Get Assistance and Referral To A Pre-Screened Wrongful Termination Lawyer in California ASAP!
You can submit a request online 24 hours a day. Free case review within 15 minutes.
By calling the employee right's 24-hour hotline at 1-661-310-7999