Can You Be Fired for Being Sick During COVID?

Can You Be Fired for Being Sick During COVID?

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Can You Be Fired for Being Sick During COVID?

COVID has changed many different things in the American workforce, leading many employees to do as much as possible to investigate their rights and resources. Knowing the rights that you have as an employee can be extremely important if you believe that your employer has violated the law. You may be eligible to take legal action against your employer if they have engaged in discrimination or other illegal activities. 

In these situations, it is extremely important to understand what constitutes illegal activities so that you can be confident to take the next steps to protect yourself, including retaining an experienced employment attorney if necessary. Getting COVID may be completely outside of your control, even if you are fully vaccinated and doing everything possible with precautions, your employer should not be able to retaliate against you for getting sick, but unfortunately, such legal situations have come up more than once since the COVID 19 pandemic began. 

However, it is important to realize that the simple answer to whether or not your employer can fire you for being sick during the pandemic is, unfortunately, yes. In general, employers have a broad scope of rights and at-will employment contracts that protect their actions. Most employment contracts are at-will, meaning that an employer can take the actions that they wish to terminate you or demote you at any point in time outside of illegal reasons, such as for discriminatory purposes. 

Employers often want to have their employees return to the workplace as soon as possible, but there is no telling how COVID-19 or another sickness might impact you. There is a great deal of uncertainty about the legal protections available to employees who may be concerned if they have contracted the coronavirus or are concerned about contracting the virus because of the people they interact with at work or customers or clients. Employers can fire you for essentially any reason under an at-will employment contract, including for poor attendance. This can even include situations in which you were legitimately sick and have proof of a positive COVID-19 test. 

If you are frequently absent from work, then your employer can legally fire you for those absences. It is important to investigate your state and federal rights and to ensure that there were no other illegal activities taking place, such as an employer retaliating against you for whistleblower activity or something else. 

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  • What About the Family and Medical Leave Act? 

    One other option to explore in the event that you become sick with COVID or another illness during the pandemic is known as the Family and Medical Leave Act of 1993. It mandates that employers enable employees to take unpaid leave under very specific circumstances. If you have recently been diagnosed with the coronavirus and need additional time off, it will not be paid under FMLA, and the FMLA does not require your employer to return you to the exact job that you had prior to taking leave. However, if you apply for FMLA and are awarded it, you must be allowed to return to a similar position with similar hours, duties, and pay.

    This is because the FMLA has very specific protections in place prohibiting employers from restraining, interfering with, or denying your right to take leave. Even if your employer is annoyed with your request for FMLA leave or finds fault with your work shortly after you request it, you may also have grounds for a separate legal matter regarding their illegal retaliation against you in violation of FMLA. FMLA does not apply to each and every employer, so you should always do research first to find out whether or not your employer is covered by it. Certain states may even have statutes that extend even greater protections to you. FMLA only applies to those employers who have 50 or more employees, so bear in mind that a small company is likely not covered by this. Furthermore, you have to have been employed by your current employer for a minimum of 12 months and worked at least 1,250 hours or more over that period. If you and your employer are both covered under FMLA and you seek to take leave because of the coronavirus, you are eligible to take as long as 12 weeks of unpaid leave from work over a 12-month period for any purposes: to care for a new baby, newly adopted child, the birth of your child, to care for your family member with a serious health condition, or to care for your own serious health condition. 

    A serious medical condition is one that requires continuing treatment by a health care provider or an overnight stay in an inpatient medical facility. Continuing treatment also has a very specific definition, so make sure that you evaluate this in deciding whether or not you are eligible to take FMLA leave. Unfortunately, this means that it is technically possible for some companies to fire employees who legitimately attempt to take work off because they are sick and may not want to infect others or may simply need the time to recover. Unfortunately, the legal protections for employees are limited and unclear in the United States, but you may have grounds to begin a suit against your employer if you can show that they illegally retaliated against you or illegally acted against you in some other way. This presents some of the answers to the question, “Can you be fired for being sick during COVID?”

    There are some difficult bosses out there, and it is important to know your rights even before you get sick so that you are in a good position to advocate for yourself if you do get COVID 19. Beyond FMLA, over 30 states have their own laws requiring companies to provide unpaid or paid family and medical leave. And two of those states, New Jersey and Georgia, recently enacted medical leave laws as a result of the pandemic. 

    The Department of Labor discovered that 75% of private industry workers had access to paid sick leave at the beginning of the pandemic, and 45% of part-time employees did, whereas 86% of full-time employees did. Emergency legislation was passed early on in the pandemic that gave many workers access to paid sick leave, but that law expired at the conclusion of 2020. The federal government also gave tax credits to small companies to pay workers for sick leave, but those expired at the end of September 2021. 

    Always read through your employee handbook and understand the specific laws that could impact you as an employee. This will help you to determine whether or not your employer has acted illegally and whether or not you have grounds to take the next step to protect your interests. A supportive and experienced employment attorney is strongly recommended if you find yourself in the position of discovering that you have grounds for a legal case against your employer. Having the support of a knowledgeable attorney is instrumental in protecting your rights and helping you prepare for any legal case that may follow.

    If you think that you have been wrongfully targeted by your employer due to a sickness or that they have violated your rights under FMLA, it is critical that you speak with a lawyer as soon as possible about your next steps. An attorney can review the facts in your case to give you a more personalized perspective on whether or not you have a legal claim to pursue. It can be a serious matter to allege that your employer violated FMLA or broke another law related to employee rights, so you need to know that you are working with a lawyer who has a deep understanding of these issues. 

  • What Evidence Do I Need for a Claim?

    One of the most important things to know about bringing any lawsuit against an employer is that you should hire an attorney. This is true even if you’re thinking about a legal FMLA case for your COVID sickness. It’s key that you have provided notice to your employer and completed any required paperwork. Remember that even if your employer is required to offer FMLA leave, you might be the first person ever asking your employer for this. Follow any listed procedures and document all of your communications with your supervisor or boss. Not only does this help both of you get on the same page about your request, but it could be valuable evidence in the future. Your employment lawyer can help you with this and with organizing this evidence. Furthermore, it’s recommended that you ask a lawyer, “Can you be fired for being sick during COVID?” 

    If you feel that you were wrongfully fired for your illness during the COVID-19 pandemic,  contact the experts at Morgan & Morgan for a free, no-obligation case evaluation. Reach out and take your first steps toward justice. 

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