In Charleston, S.C., a restaurant was sued by a former server who says he was fired after he left work to get tested for COVID-19. A large automaker was also recently sued for wrongful termination after firing an employee within hours of the employee’s complaint about safety concerns, even after the employee had been assured that he could stay home without penalty indefinitely.
These are two examples of a number of recent lawsuits filed by former employees who contend that they lost their jobs during the pandemic for improper reasons. Although the circumstances of these particular cases have yet to be fully litigated in court, understanding the circumstances can present a valuable learning opportunities for employers who are operating under very challenging circumstances.
The Importance of Documentation
In the Charleston case, the employee sought to leave work to get tested for COVID-19.
Under the recently-enacted Families First Coronavirus Response Act (FFCRA), companies with fewer than 500 employees are required to provide up to two weeks of emergency paid sick leave to employees for six reasons, including if the employee is seeking a medical diagnosis due to symptoms of COVID-19. Leave must also be provided if the employee has been directed to isolate or self-quarantine, or is caring for someone else who has been directed to do so or who is ill.
Employers are prohibited from retaliating against employees for exercising their rights under the FFCRA.
Other laws that are frequently invoked in the workplace during the pandemic are similar. For example, Arizona’s mandatory paid sick leave statute and the Americans with Disabilities Act both have anti-retaliation protections. Similarly, if an employee complains about concerns that it is not safe to be at work, then the anti-retaliation protections of the Arizona and federal Occupational Safety and Health Act (OSH Act) may apply.
Many employers do not fully understand that the employee asserting the right does not have to be correct about the original “protected activity.” This might mean, for example, that an employee who asserts that it is unsafe to come to work is protected — even if, in fact, the employer has taken all appropriate precautions, complied with state and local guidance and taken steps to ensure that the workplace is safe.
To avoid running afoul of these protections, employers should make sure to document the efforts they have taken to comply with applicable laws (such as by posting required posters, maintaining written policies, reminding employees by email and physical signs of the steps taken to ensure safety in the workplace, and similar actions). Employers should also ensure that if it is necessary to engage in corrective action in the workplace (including termination of employment), the reasons for corrective action are well-documented.
The Importance of Communication
The automaker’s employee contends that he received an email from human resources stating, “There is no need to feel that you are going to lose your job. If at this time you do not feel comfortable returning to work, you can stay home without penalty and take the time unpaid.”
Nevertheless, shortly after the employee publicly raised concerns about working conditions and his fear of returning to work, he received a “Failure to Return to Work” notice. While it is no doubt challenging for an employer to have an employee publicly expressing concerns about working conditions, employees making such statements have workplace protections under the National Labor Relations Act as well as other laws, such as the OSH Act.
Rather than taking disciplinary action or terminating an employee in the wake of such concerns, employers should make every attempt to understand what is behind the employee’s expressions of concern. If the company is confident that it has taken the appropriate steps to address safety in its response to the pandemic, then the company should examine whether it has communicated its efforts to employees so that each and every employee understands those efforts and their own role in ensuring safety and health during the pandemic. Had the automaker viewed the employee’s actions as a learning opportunity rather than an opportunity to take disciplinary action, it may well have been able to avoid a lawsuit.
Spencer Fane LLP