If you have been discharged from your position during the coronavirus pandemic, you may have a claim for wrongful termination. While both employers and employees are facing considerable challenges as a result of the COVID-19 outbreak, there are still laws in place protecting employees. This includes laws providing personal protective equipment (“PPE”) to employees, allowing family and medical leave, and terminating employees. If you have been laid off as a result of the pandemic, it is essential that you know your legal protections.
Health and Safety in the Workplace: Your Rights, Explained
Although the spread of COVID-19 is unprecedented, employers are still obligated to take appropriate precautions to protect their employees. News reports are running rampant of employers who have failed to provide or have discourage employees from wearing PPE. Some employers have even pressured employees who have been exposed from the virus from taking time off.
In these uncharted waters, it is important to know you have rights. You cannot be fired for raising safety concerns or refusing to work because you fear becoming infected with the virus. You have legal protections afforded by federal law.
Occupational Health and Safety Administration (“OSHA”) Protections
In the event of immediate or imminent danger, OSHA provides that an employee can refuse to work. The federal Occupational Safety and Health Act (“OSH Act”) requires that employers keep the workplace free of hazards. OSHA has the authority to prevent retaliation against workers who shed light on violation of numerous federal statutes. The agency as also issued safety guidelines that should be followed during the pandemic. These recommendations include social distancing and encouraging sick employees to stay home from work.
Under the OSH Act, if you were fired for notifying your employer of a COVID-19 related safety concern, you would have a valid claim for wrongful termination.
However, the bar for refusing to work and still maintaining the protections afforded by OSHA is very high. As previously stated, OSHA provides that an employee can refuse to work in the event of an immediate or imminent danger. The “imminent danger” standard is difficult to satisfy. An employee must reasonably believe that work conditions create an immediate risk of death or serious physical harm. Two factors that are considered when determining whetrther a belief is reasonable include the nature of employment and the risk of contracting the virus. By way of example, a healthcare worker who is not given PPE would have a stronger claim than an office worker who can take social distancing measures.
You are entitled to file an OSHA complaint if you have raised your safety concerns with no response from your employer. You are also entitled to file a whistleblower complaint if a negative employment action was taken against you for raising a health and safety concern.
National Labor Relations Act (“NLRA”) Protections
The NLRA protects concerted activities by employees, which includes a refusal to work because of unsafe working conditions. It protects workers from unfair labor practices and protects workers (whether unionized or non-unionized) from retaliation for filing a complaint with their employer or the National Labor Relations Board. Speaking out in public about unsafe work conditions due to COVID-19 may be protected as a concerted activity.
Taking Time Off: Your Rights, Explained
In weighing whether you can afford to stay home and self-quarantine, it is important to keep in mind that if you protest your employer making you go to work against lawful orders, you cannot be retaliated against.
Families First Coronavirus Response Act (“FFCRA”) Protections
The FFCRA amends the Family and Medical Leave Act of 1993 by adding benefits relating to coronavirus. One of the key components of the policy is that it would give some workers two weeks of paid sick leave and up to three months of paid family leave. It also expands Medicaid and unemployment benefits. However, it applies only to businesses with fewer than 500 employees, and the workers or their family members must be infected or told to go into quarantine. Provisions of the Act will apply from April 1, 2020 through December 31, 2020. Please see our guidance which explains when an employee has a right to take leave related to COVID-19 under the FFCRA and addresses some frequently asked questions regarding the FFCRA.
Family and Medical Leave Act (“FMLA”) Protections
The FMLA allows eligible employees to take up to twelve weeks of unpaid leave per twelve month period. FMLA coverage is generally available for “serious health conditions.” The employee is eligible to take FMLA leave if he/she is suffering from a serious health condition or to care for a family member suffering from a serious health condition. An employee who is asymptomatic and does not have a sick family member but is self-quarantining is not entitled to FMLA protection.
Is COVID-19 Protected as a “Disability” under the Americans with Disablities Act (“ADA”)?
For employees who do not experience symptoms, or only mild, temporary symptoms, COVID-19 standing by itself would not constitute a “disability” under the ADA, as it would be considered a temporary, non-chronic impairment with little or no long-term impact. These types of illnesses are not viewed as disabilities under the ADA. However, an employee may be entitled to ADA protections if their reaction to COVID-19 is severe or if it complicates or aggravates the employee’s other health condition(s) or disabilities. Employers are to assess whether an employee is “disabled” under the ADA on an individual basis, taking into account the aforementioned factors and any other relevant considerations.
Employees with serious cases of COVID-19 would likely be considered “disabled” under the ADA. Under the ADA, an employer must provide a reasonable job accommodation to an employee who has a disability unless it would cause undue hardship.
Remedying a Wrongful Termination
The vast majority of workers in New Jersey are considered at-will employees, who can be dismissed at the discretion of their employer without warning—with some exceptions. Employees who are members of a protected class or who engage in protected conduct cannot be fired on the basis of those attributes and actions. Employers who violate these rules can be held accountable for a wrongful termination. If your employer violates any of the previously discussed rights, you may have a claim for wrongful termination. If you suspect you have been laid off because of your membership in a protected class or your participation in a protected activity, a wrongful termination lawsuit can provide relief.
Contact Our Employment Law Attorneys For A Free Consultation
At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face, helping both employers and employees with legal areas including employment contracts, discrimination, law, litigation, whistleblowing, and retaliation issues. Please call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, OR contact us at 888-396-0736 or online for a free consultation. We represent clients throughout New Jersey.