Is Terminating an Employee with COVID-19 Discrimination?

You may wonder whether it is unlawful to terminate an employee because he or she has tested positive for COVID-19. Like so many other issues in employment law, the answer depends on the unique facts.
At Gardner Employment Law we take discrimination very seriously. During the pandemic we have helped many clients solve discrimination problems at work. If you feel you are being discriminated against due to COVID-19 or any other reason, call us at your convenience.

Does Having COVID-19 Protect You from Termination?

Because of at-will employment, you must identify a law that protects employees rights, such as the right to be free from discrimination.  Workplace discrimination can be defined as any act or inaction that treats an employee differently from other employees on the basis of an identifying protected characteristic. Generally, under the law the most common protected characteristics are race, gender, age, religion, national origin, and disability.  Obviously, COVID-19 is not on the list.

However, COVID-19 might come into play if the illness causes a permanent physical or mental impairment that limits the employee from performing any major life function. If the facts support that conclusion, then the employee could be protected by the ADA (Americans with Disabilities Act)

How Can the ADA Protect an Employee with COVID-19?

For that answer, the required elements in the statute must be closely examined.  We explained in Americans with Disabilities Act that the statute addresses 3 situations:  An employee

1. Is in fact disabled and is entitled to a reasonable accommodation;
2. Is regarded as being disabled when he or she is not; or
3. Has a record of being disabled.

The disease itself, COVID-19, cannot be considered a “disability” because most people recover and are fine. But when an employee has a permanent impairment from having COVID-19, not a transitory illness, then a physician may conclude that the disease was in fact disabling.

The ADA also could be triggered by the two other situations protected by the ADA.  If the employer terminates an employee returning to work after having recovered from COVID-19, the motivation could be that the employer “regards” the employee as being disabled when he or she actually is not.  Or if a supervisor reads a medical record in the employee’s file and notices a history of having COVID-19 and the supervisor treats the employee adversely because of that record, there could be a basis for discrimination.

Here are actual cases that have been filed in Texas courts regarding termination and COVID-19. In the first case the plaintiff, who worked in a nursing home, had two patients who tested positive for COVID-19. The plaintiff then went to be tested for COVID-19. Because she suffers from diabetes and high blood pressure putting her at a higher risk, the plaintiff contacted her doctor and asked what she should do next.  Her doctor advised her to call the CDC hotline, who instructed her to self-quarantine while she awaited the results of her test.

When the plaintiff informed the facility’s administrator that she had been advised to self-quarantine, the administrator told the plaintiff that she could not quarantine simply because of potential exposure.  Also, there was no other employee who could take care of her patients. The plaintiff responded that she did not feel comfortable returning to work, as the CDC had advised her to self-quarantine.

The next day, the plaintiff was terminated for refusing to return to work. The plaintiff sued under Texas state law, alleging the nursing home failed to accommodate her disability of diabetes and high blood pressure when it did not allow her to self-quarantine. She also alleged that the nursing home discriminated against her on the basis of an actual or perceived disability when it terminated her employment.

In another case, the plaintiff tested positive for COVID-19, and his employer ordered him to quarantine for two weeks. When he returned to work, his employer terminated him for violating attendance policies and not finishing assigned work.  However, before he contracted COVID-19 the plaintiff had not been informed of any problems with his attendance or incomplete assignments.  All of his absences prior to his COVID-19 diagnosis had been pre-approved by his supervisor. The plaintiff filed suit and claimed that the employer actually terminated him because of a perceived disability based on COVID-19 in violation of the Texas Labor Code.

Both cases are pending final outcome.

Ask for Expert Advice

Can your employer fire you due to the COVID-19 pandemic?  The short answer is yes, but the situation is not always cut and dry. If you are a victim of discrimination for having COVID-19 and need professional help, we are here to guide you and offer expert advice. Give us a call for more information.