Getting fired is never pleasant. Getting fired for being sick is cruel (and oftentimes illegal). And getting fired for having COVID-19 during a global pandemic is ruthless (and also oftentimes illegal).
This article focuses on employees being wrongfully terminated due to contracting COVID-19 and/or for having to quarantine as a result of COVID-19. In fact, many employees have been fired for simply showing symptoms of an illness or they were awaiting test results and were under quarantine. These actions by employers are patently illegal.
As we all know, the coronavirus outbreak is responsible for one of the worst health emergencies to circle the world in the last century. Millions of workers everywhere lost their jobs as the pandemic quickly unfolded, wreaking havoc on the national and world economies. However, just because the pandemic may serve as the reason for why jobs were lost—and continue to be lost—too many employers used the pandemic as an excuse to violate state and/or federal law.
Many individuals struggle for an answer to our main question: Can I be fired for missing work due to having coronavirus? California is an "at-will" state, which means your employer can decide to fire you for any reason or offer you no reason at all. But—and this is an important “but”—your employer cannot fire you for unlawful reasons or for reasons that violate state and/or federal regulations. Fortunately for California employees, there are many laws protecting employees from unlawful terminations.
California Laws Protect California Employees
California state laws protecting employees with regard to the COVID-19 pandemic are some of the strongest in the nation. The two strongest acts are the California Family Rights Act (CFRA) and the Family and Medical Leave Act (FMLA). These laws protect employees who contract COVID or they're caring for a covered relative who has contracted COVID. Employees who are unable to go to work because their child's school is closed (and they have no other care options) are also protected. You may also qualify for protection if you're pursuing a diagnosis for COVID-19.
Depending on your employer and the length of your employment, California law may allow you to take up to twelve weeks of personal sick leave or to care for a family member who is ill. Employers cannot fire you for taking eligible sick leave under both state or federal laws.
Also keep in mind: your employer cannot fire you for using your California-mandated family or medical leave due to getting coronavirus. In fact, from January 1, 2021 to September 30, 2021, California required employers with 26 or more employees to provide their workers up to 80 hours of supplemental paid sick leave (SPSL) for COVID-19 related reasons. You could be eligible to request your earnings for any unpaid COVID-19 leave during 2021. Please note that while the right to paid leave in California expired on September 30, 2021, an employee who was on paid leave during the period prior to the expiration date may still be entitled to continue their paid leave—according to California's Labor Commissioner.
CalOSHA's Emergency Temporary Standards
Under the CalOSHA Emergency Temporary Standards, employers are required to continue and maintain your earnings, seniority, and all other rights and benefits, including the right to your job status, when the employer prevents you from entering the workplace because of a positive COVID-19 test or a COVID-19-related order to quarantine that was issued by a municipality or state. If your employer fires you for not coming to work in compliance with any government directive (government mandated isolation/quarantine), you may have a claim for wrongful termination.
Shouldn't an employer have the right to protect the safety of other employees?
The answer is, of course, yes—but the employee who is ordered to quarantine under OSHA standards cannot be penalized and/or terminated for not reporting to work for simply complying with OSHA guidelines. An employee who requests or takes time off from work—based on the recommendation of a medical professional or because of a government mandate (such as OSHA standards)—may not be terminated or refused reinstatement if the employee is likely to infect others in the workplace.
Americans with Disability Act
The Americans with Disability Act (ADA) is federal legislation designed to protect employees with serious medical conditions and/or disabilities in the workplace. The ADA safeguards workers against employers who refuse to offer covered employees reasonable accommodations as well as prohibits employers from firing employees on the basis of their disability and/or serious medical condition.
As we have learned, many people suffer serious complications from COVID-19 as well as long-term side effects that can impact their ability to carry out their essential job duties without reasonable accommodations. If you develop (or developed) complications from COVID-19, then you may have a qualifying disability. If you have (or had) coronavirus and meet (or met) the definition of disability under the ADA—and were wrongfully terminated—you may very well have a claim against your employer.
Also keep in mind that under the ADA, an employer cannot fire you for reporting your company's failure to obey federal and California state COVID mandates.
If you believe your employer broke the law by firing you based on a COVID-19 absence, or if you lost seniority or any other rights and benefits based on a COVID-19 absence, contact us today to take advantage of our free consultation.
Lawyers for Employee and Consumer Rights: we're here for you.