When a pandemic strikes our nation, the last thing you think about occurring is your employer firing you because you needed to care for your loved ones. While there is no question many will lose their jobs due to the economic downturn following the pandemic, there are still many Americans who may face retaliation and wrongful termination under the guise of COVID-19.
Below are possible claims and actions we may be able to take with you, to prove wrongful termination during the outbreak of COVID-19. And if these apply to your situation, you need a COVID-19 wrongful termination attorney.
REFUSAL TO WORK IN VIOLATION OF HEALTH AND SAFETY STANDARDS – WRONGFUL TERMINATION
According to The U.S. Department of Labor’s Wage and Hour Division, “encourages employers to be accommodating and flexible with workers impacted by government-imposed quarantines. Employers may offer alternative work arrangements, such as teleworking, and additional paid time off to such employees.”
Further, according to the Occupational Safety and Health Administration (OSHA), workers have a right to not be discharged for refusal to work in violation of health and safety standards.
While each state law varies, commonly employees are protected from termination for disclosing illegal conduct made by the company or testifying against the organization. Of course, if you live in a region where there are travel bans, and your employment is deemed non-essential, going into work can put you at risk for legal repercussions.
Similarly, your employer cannot force you to come into work if there are government mandates in place.
HEALTH INQUIRIES BY EMPLOYERS: ARE THEY ALLOWED?
Under the Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, certain elements of the Americans with Disabilities Act are made more lenient to employers to protect the wellbeing of the entire organization. Such exemptions include:
- An individual’s potential infection with the disease
- Asking an employee to work from home during the pandemic
- Asking about family member’s illness
However, in regard to questions about the family members, issues can arise under the Genetic Information Nondiscrimination Act. To avoid complications, your employer is really only permitted to ask if the family member has recently traveled in regards to potential exposure but not push further.
If you divulge any additional information to your employer and you are fired shortly after, you may have a COVID-19 wrongful termination claim.
MY FAMILY MEMBER HAD COVID-19. I WAS TERMINATED AFTER TAKING TIME OFF TO CARE FOR THEM.
While it is not illegal for your employer to fire you or lay you off during the pandemic due to an economic downturn, you cannot, under any circumstance, be terminated due to discrimination.
If a family member was diagnosed with the Coronavirus and you needed to take time to care for them, the Family Medical Leave Act (FMLA) protects you to do so.
Under FMLA, you are permitted to:
Twelve workweeks of leave in a 12-month period:
- to care for the employee’s spouse, child, or parent who has a serious health condition;
- a serious health condition that makes the employee unable to perform the essential functions of his or her job.
Under the law, you cannot be terminated for taking FMLA. However, if prior to your departure your employer has a legal reason to fire you, due to non-discriminatory causes, your termination is legal.
This is an extremely challenging time for thousands of families across the nation. The fear of being unable to provide for your family due to wrongful termination is not acceptable.
If you believe you were wrongfully terminated during the COVID-19 pandemic due to the inability to come into work, or because of FMLA, call us today. We have COVID-19 wrongful termination attorneys all over the nation waiting to take your case.