The first case of COVID-19 was reported on January 22, 2020 and, by March 16, that number had risen to 4,226. The quick rise in people affected led governors of many states to shut down all but essential businesses. Many of these shutdowns began in mid-March and, although some were only for two weeks, all have been extended until as late as May 15th. As a result of the closures, many businesses were forced to lay off employees until they can reopen. However, some businesses have taken the drastic step to fire their employees during the pandemic. If you have been fired due to COVID-19, you may have a wrongful termination case, according to an employment attorney Newport Beach.
Seeking a Wrongful Termination Lawyer for COVID-19 Cases
According to a Newport Beach workplace lawyer, your employer is required to provide you with the proper Personal Protection Equipment (PPE) to keep you safe while you perform your job duties. This may include gloves, masks and even hazmat clothing. There have been instances where an employee who raises safety concerns have been fired, especially if they file a complaint with a governmental body. In other cases, employers have refused to allow those exposed to the virus to stay home, terminating them when they chose to do so. Some who have the capability of allowing employees to work from home have refused to allow them to do so, requiring them to come into a building that may not be safe, a Newport Beach labor attorney for employees, explained.
Federal Occupational Safety and Health Act (OSHA)
Workplace safety throughout the country is overseen by OSHA. There are not only state OSHA guidelines but also federal guidelines that must be followed. OSHA issued specific safety guidelines regarding the handling of COVID-19, a wrongful termination lawyer Newport Beach stated. These recommendations included social distancing, requiring employees and customers to keep a distance between them of six feet or more as well as regular workplace disinfection. Employers were also to encourage sick staff members to stay home and they could not take any negative disciplinary action against those who complained about safety.
Failure to Address OSHA Safety Precautions
You may have chosen to stay home because your employer did not address the safety violation you reported under OSHA regulations. If your employer then fired you because you felt unsafe, you will need to prove you faced imminent danger in order to refuse work. This means you had to be in immediate risk of death or serious physical harm. This is a difficult thing to prove with a virus as not everyone who is exposed contracts the illness. If the nature of your employment places you at higher risk than other occupations, you may have a better chance of proving your claim. For example, if you worked in a long-term care facility and your employer did not provide you with a mask or gloves to care for patients, you would have a better chance of claiming wrongful termination than a receptionist who demanded a mask and gloves even though they could easily social distance themselves from customers. Instead of refusing to work, your best option in this case would be to file an OSHA complaint and, if you suffer consequences for that filing, you may be able to file a whistleblower complaint with the help of a fired for COVID-19 lawyer.
National Labor Relations Act (NLRA)
There is another federal law that is designed to protect you from unfair labor practices. The NLRA protects both union and non-union employees if they feel the need to walk off the job due to safety violations or unsafe working conditions. The NLRA can lead to fines for your employer if they retaliate against you for filing a claim or speak out publicly about the problem but cannot be used as part of a lawsuit against them, an employment attorney Newport Beach explained.
Time Off Due to Virus
One question often asked of a Newport Beach workplace lawyer is whether an employee can be fired for taking time off due to COVID-19. There are two federal laws that protect you in this instance, a fired for COVID-19 lawyer said. The Families First Coronavirus Response Act (FFCRA) was created specifically for the COVID-19 pandemic. Private employers with fewer than 500 employees must provide temporary paid leave for certain reasons. These include experiencing symptoms, a quarantine requirement after exposure, caring for an individual, like a parent or child, who is quarantined or caring for a child whose daycare or school has closed. The Family and Medical Leave Act (FMLA) allows employees to take up to 12 weeks of unpaid leave each year in order to care for someone with a serious health condition.
Is COVID-19 a Disability?
The Americans with Disabilities Act (ADA) prohibits employers with 15 or more employees from discriminating against someone with a recognized disability. Under the ADA, a disability is a condition that limits major life activity and breathing is included in those limitations. Because difficulty breathing is a symptom of COVID-19, an employer may be required to provide a reasonable job accommodation for someone who has contracted the illness. That does not necessarily mean that a COVID-19 diagnosis automatically qualifies as a disability under the ADA, a Newport Beach labor attorney for employees said. The severity of symptoms and how long they last will be a determinant as to whether you qualify for a disability. If your symptoms are mild, such as a slight fever and tiredness, you may not be considered disabled while someone who is unable to breath without assistance may be.
Is a Diagnosis of COVID-19 a Disability?
A wrongful termination lawyer Newport Beach is often asked if a diagnosis of COVID-19 could be considered a disability due to the threat it poses to the health and safety of other employees. The Equal Employment Opportunity Commission (EEOC) has determined that if you are diagnosed with the virus, you are a direct threat to others which means you cannot be fired for quarantining while you recover. However, your employer may be able to require you to work remotely even if you have a positive test as that would pose no threat to your coworkers. However, if your symptoms are not mild, your employer will probably not be allowed to fire you according to an employment attorney Newport Beach.
Other Types of Wrongful Termination
Over the past few months, there have been instances of employees of Asian descent facing wrongful termination or other forms of discrimination since the virus is thought to have originated in China. Title VII of the Civil Rights Act of 1964 prohibits adverse action based on race, color, religion, sex and national origin. An employer can also not force you to commit an illegal act. Therefore, if you are ordered to shelter in place, your employer cannot require you to come to work and, if you do refuse to violate the order, they cannot fire you.
If you believe you have been wrongfully terminated during the pandemic, contact the Newport Beach lawyers at Accident Lawyers Firm to learn what rights you may have. A wrongful termination lawyer Newport Beach can review your case and determine if you have a wrongful termination case against your employer. Give us a call at (949) 356-7971 or fill out the easy online form to arrange for a no obligation consultation with a Newport Beach labor attorney for employees.