Published on March 2, 2020 by the FairShake Team
Yes, in many cases, you can be fired for staying home because you or a loved one is sick, or because your kids are out of school. The federal Family Medical Leave Act (FMLA) protects some workers from being fired for up to 12 weeks to recover from a serious health condition or to care for a close family member (spouse, child, or parent) with a serious health condition. However, the FMLA does not protect you from being fired for the following reasons:
In addition to those limitations, the FMLA doesn’t give you paid leave (it just protects you from being fired), and it only protects caregivers of people with a serious illness. If you’re just staying home because your kid’s school is shut down, and they’re not seriously ill, then you’re still at risk of being fired for missing work.
In addition to the FMLA, workers that stay home because they have COVID-19, or because their kid’s school is shut down, may be protected by state laws, local laws, or company policies.
If you are fired because you have COVID-19 or because you have to stay home to care for someone who has it, you may have options to fight back. Many American workers are protected from being fired for up to 12 weeks when they stay home to recover from a serious illness or to care for a close family member (child, spouse or parent) who has a serious illness. If you have worked for a large company for over a year, and worked at least 1,250 hours in the past 12 months, then it’s likely that you have two options:
Many states and cities also have laws that protect you, even if you don’t qualify for the federal protections because you work for a smaller employer or worked fewer than 1,250 hours. You may even be eligible for paid sick leave in some cities and states.
Yes. While your employer cannot tell you what to do during non-work hours, the company can prevent you from reporting to work if you’re sick, or even if they’re worried that you may have been exposed to the Coronavirus. In fact, your employer may not have a choice: the Occupational Safety and Health Act (“OSHA”) requires employers to provide “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This means that the company could be forced to send you home if you’re a risk to other people in the workplace.
No. Unless you have accrued paid time off under your employer’s policy, qualify for your employer’s paid sick leave policy, or are in a state that requires employers to provide you with paid sick leave, your employer does not have to pay you for the time you spend out of work.
Yes. If you are not eligible for the FMLA or similar state-law protection (see above to find out if you are), then your employer can fire you for missing work, even if your employer is the one who sends you home or stops you from coming to work.
The federal Occupational Safety and Health Act (“OSHA”) requires your employer to provide you with a safe work environment. If your employer is knowingly encouraging sick employees to come to work, the company might be in violation of its obligations to you. Unfortunately, you aren’t allowed to sue your employer for OSHA violations, but you can report the company to the government, which can investigate, stop the behavior, and issue fines.
If you contract COVID-19 because your employer put you in close quarters with someone the company knew was infected, you may also have a state law claim against your employer for any costs or damages that resulted from your infection, including physical harm or death. The state law claims can be made under various statutes, or under “common law” claims like “negligence.”
According to Paul Hastings, a prominent law firm that advises large companies on employment issues:
“Requiring employees to engage in non-essential business travel to affected areas could create OSHA risks. Therefore, employers should consider other available options (e.g., telecommuting) for employees. If an employee refuses to travel to an area covered by CDC travel restrictions, what steps, if any, might an employer take in response—depending on the factual circumstances—could result in claims of unlawful retaliation under certain statutes. Employers should consult with counsel on the proper response.”
That means that your employer could be investigated and fined by the federal government for sending you into a country where COVID-19 risk is high, and that you may be able to sue them directly if you are fired for refusing to go.
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