Wrongful termination, also known as wrongful or unlawful discharge, is a legal term used to describe a situation in which an employee was fired for reasons that are either illegal or that would violate public policy. For example, workers who are fired because of their national origin would have grounds to sue their employer for wrongful termination.
Claims and reports of wrongful termination have skyrocketed since the start of the COVID-19 pandemic. However, not all claims may be weighed the same even if they are valid. For instance, workers who filed claims for wrongful termination during the pandemic based on discrimination or harassment in the workplace because of their race, may have a stronger case.
Other examples of stronger claims would be if your employer fired you for refusing to go to work while stay-at-home orders were in place or for terminating you because you filed for workers’ compensation benefits in connection with a COVID-19-related injury or illness.
In contrast, though still a legitimate concern, it might be more difficult to file a lawsuit and recover damages for wrongful termination if you are refusing to go to work because you prefer working from home more or do not believe the office is safe despite your employer taking the appropriate precautionary measures.
Since some of the legal issues and many of the laws surrounding wrongful termination cases that involve COVID-19 disputes are new, it may be in your best interest to at least speak to a local employment lawyer for further advice on what you should do if you believe you were wrongfully terminated during the coronavirus pandemic.
Can I Be Fired for Complaining About Lack of PPE?
According to the U.S. Occupational Safety and Health Administration (“OSHA”), personal protective equipment—better known as the acronym “PPE”—refers to equipment and/or apparel that is designed to minimize the risk of developing an illness or sustaining an injury in a hazardous work environment.
Prior to COVID-19, this type of equipment was generally reserved for workers in industries, such as construction, research laboratories, and various other work environments where a position would require employees to work with potentially dangerous materials and/or toxic chemicals.
Post COVID-19, however, many employees have expressed valid concerns about returning to the workplace in light of recent health and safety issues resulting from the pandemic. Employees who may not have been as concerned for their health and safety in the past or worked in environments that did not mandate they wear PPE to perform their job duties, are now questioning what they can do about the lack of PPE at their job.
For starters, employees who have a legitimate cause for concern cannot be terminated for complaining about the lack of PPE at work. This means that their employer cannot lawfully fire them or demote them simply for expressing worry over the lingering pandemic conditions.
Depending on the facts surrounding a termination, a worker may be able to file a lawsuit against their employer if they are fired for complaining about lack of PPE, regardless of their industry.
It should be noted, however, that an employee should speak with their employer first about safety and/or health issues before taking legal action. If the employee has already been fired for voicing their opinion regarding lack of PPE, they should speak to a local employment lawyer for further legal advice about their specific issue.
What if I Was Subject to Retaliation for Whistleblowing About a COVID-19 Issue?
In general, both the NLRB and OSHA maintain that it is illegal to retaliate against a worker for engaging in whistleblowing activities. Briefly, whistleblowing refers to conduct that involves reporting or complaining about an employer for ignoring certain laws or behaving in an unethical manner. Whistleblowers are normally protected against retaliation from employers under a specific set of federal and state statutes.
However, this does not necessarily mean that a worker cannot be fired for other legitimate reasons, such as if they are constantly absent from work for unexcused reasons or have consistently demonstrated poor job performance.
This is especially true for workers who are employed by a company as an “at-will” employee since an employer will not need just cause to fire them. Thus, it can be difficult for at-will employees to prove that they were wrongfully discharged because of whistleblowing activities, and not due to a different reason that their employer claims is the real reason.
Since the start of the pandemic, OSHA has received over 5,000 complaints related to retaliation for whistleblowing about COVID-19 issues in the workplace. The retaliatory acts alleged in these complaints have ranged from firing employees to demoting and reducing the number of hours an employee was permitted to work.
Employees who believe they were subject to retaliatory discharge must file a complaint with OSHA before they can sue an employer in court. The agency will then conduct an investigation to determine whether an employee was wrongfully discharged based on a retaliatory motive related to COVID-19 whistleblowing activities.
If the agency fails to resolve the issue in accordance with an employee’s satisfaction, the employee may have other options they can pursue.
It is important to note that the laws regarding retaliation often vary from state to state. Therefore, the options that an employee has will be contingent on state-specific laws and the facts of their case. For example, some states provide special protection for employees who are terminated for complaining or reporting an employer for COVID-19 issues, while those in other states may need to involve their state’s department of labor to obtain relief.
Can I Collect Damages if I Was Wrongfully Fired During the COVID-19 Pandemic?
Whether a worker will be permitted to collect damages for being wrongfully fired during the COVID-19 pandemic will depend on a number of factors, such as the reason their employer is claiming they were fired as well as the laws regarding wrongful termination in their state.
For example, if a worker was fired at the start of the pandemic when emergency orders were in place, they may be able to collect damages because at that time it would have been illegal for them to go to work against strict orders issued by the federal and potentially their state and/or local government.
A worker may also be able to collect damages if they can prove that they were fired as a retaliatory response to engaging in whistleblowing activities, for complaining about legitimate PPE concerns, and/or due to other illegal reasons, such as workplace discrimination or harassment based on their race or another legally protected category.
Additionally, a worker could potentially collect damages if an employer forced them to quit because their employer refused to pay for extra health and safety measures in the workplace at the height of the pandemic. This action is known as “constructive” discharge or dismissal.
On the other hand, if the employer can provide a lawful defense against an employee’s claim, then the employee will not likely be able to collect damages. Again, to recover damages, the employee must be able to demonstrate that they were in fact wrongfully fired during the COVID-19 pandemic for any of the reasons previously discussed or for some other lawfully recognized reason (e.g., breach of contract or violation of public policy).
Do I Need to Hire an Employment Lawyer for Help with a COVID-19 Termination Issue?
Resolving issues related to employment law matters was already a difficult task to accomplish without first hiring a lawyer before COVID-19. The pandemic has only made managing such cases that much harder since many COVID-19 termination claims are novel legal issues. Thus, it is strongly recommended that you consult with a local employment lawyer for further legal guidance if you believe you were terminated for reasons associated with COVID-19.
An experienced employment lawyer can provide advice on the new laws enacted in your state regarding COVID-19 termination issues and can discuss what you might be able to do about your particular situation. If your lawyer determines that you have a viable claim, they will also be able to assist you in navigating the corresponding legal procedures.
In addition, your lawyer can also help you to settle any issues with your employer, or alternatively, can provide representation in court if your case ends up going to trial. Lastly, and most importantly, if you are unsure whether you have grounds to file a lawsuit or not, your lawyer will be able to review the facts of your case and can give you an informed expert opinion on what the best course of action might be for you.
