Lost My Job Because of COVID

Since the pandemic began in March 2020, the Coronavirus disease (COVID-19) (SARS-CoV-2) has affected many facets of our lives, including work. A highly contagious variant of COVID, B.1.1.529 Omicron—first identified on November 24, 2021, according to the Center for Disease Control and Prevention—has added a new dimension to the pandemic.

COVID has placed a great strain on both California employers and workers. Shutdowns and other restrictions triggered by the pandemic caused the temporary closure of innumerable businesses. Shutdowns and other restrictions also temporarily prevented many workers from earning a living. As the pandemic persisted, some businesses decided to downscale their operations and permanently reduce their workforce. This left many workers unemployed. Many other businesses were forced to close permanently and eliminate their workforce, sending more workers into the ranks of the unemployed. Even after California eased restrictions on businesses, both employers and workers have continued to suffer. Now, on top of everything else you have had to contend with during the pandemic, you have lost your job because of COVID.

If you lost your job because of COVID, you are not alone. COVID’s destructive effect have caused many employers to retaliate against workers they feel are responsible for adding to their COVID-related problems.

Your employer is unlikely to say straight out that you are being fired because of COVID. The reason for this is because firing you for COVID may very well be unlawful. What your employer is more likely to do is give a reason, an excuse, a pretext, which if believed would provide a lawful ground for firing you. So when is it lawful to fire you for COVID and when is it unlawful to fire you for COVID? To answer this question, a review of California wrongful termination law will be helpful.

At-Will employment is employment that may be terminated at the will of either party on notice to the other. California law presumes that any employment relationship is At-Will employment. “An employment, having no specified term, may be terminated at the will of either party on notice to the other.” California Labor Code section 2922. This means that an employer may terminate an At-Will employee at any time without cause and without having to go through any procedural prerequisites other than to notify the employee that his or her employment is ending. Generally, an employer can lawfully fire an At-Will employee for no cause or for good cause. However, what an employer cannot do is fire an At-Will employee for an unlawful reason.

An employer generally need not tell an At-Will employee why his or her employment is ending. So long as the At-Will employee is notified that he or she is being terminated, and is paid all compensation owed up to that point, the At-Will employee generally will not have a wrongful termination claim. However, if the At-Will employee is being fired for an unlawful reason, then it is a wrongful termination regardless of whether the employer gives no reason for the termination.

An employer can also terminate an At-Will employee for cause. It is lawful to terminate the employment of an At-Will employee for severe errors in judgment or violating company policies concerning attendance, lying, stealing, threatening violence, harassing employees, bringing weapons to work, or providing false information on a job application. However, if the At-Will employee is being fired for an unlawful reason, it is wrongful termination regardless of whether the employer gives the employee a fake lawful reason for the termination.

While an employer will usually state a lawful reason for a termination, sometimes this is a sham reason to cover up the fact that the employer terminated the employee for an unlawful reason. California’s preeminent anti-discrimination law, the Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996, prohibits discrimination and retaliation based on protected personal characteristics, this includes termination based on an employee’s physical disability. A physical disability is defined to include diseases, disorders, and conditions that:

• Affect neurological, immunological, musculoskeletal, special sense organs, respiratory, speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, or endocrine body systems, and
• limits a major life activity. The term "Major life activity" includes activities such as working.

Therefore, COVID may qualify as a physical disability, and firing a worker because she has COVID, or a family member of the worker has COVID, or because the employer thinks the worker has COVID even if the worker does not in fact have COVID, can be wrongful termination.

Employer do not like COVID any more than you do. COVID disrupts business operations, causing:

• Staffing shortages
• Temporary closures of operations
• An increase in worker’s compensation cases leading to higher workers’ compensation premiums
• Increased costs to mitigate the spread of and exposure to COVID.

Employers do not like their workers to miss work. Employers do not like their workers to call out sick. Employers do not like their workers to cause other workers to miss work. COVID can cause you to miss work, call out sick, or cause other workers to contract COVID and miss work.

If you call out from work because you feel unwell and think you might have COVID, or you have tested positive for COVID, your employer may feel this has disrupted its operations. Being out from work may delay you finishing a project. Being out from work may force your employer to assign your work to someone else. Your employer may be doubly frustrated because you or a family member have had COVID before and you missed work because of it. Your employer may feel that it is your fault that you contracted COVID, by not following COVID-19 safety guidelines or some other reason.

If you go to work and then do not feel well and later test positive for COVID, your employer may feel this has disrupted its operations. Not only will you be off work, but your employer may also conclude you have exposed other workers to COVID. Your employer may feel that because you showed up to work with COVID other workers will call out sick from COVID and there will be a severe staffing shortage.

Consequently, your employer may retaliate against you, coming up with a pretext to get rid of you, a pretext enabling your employer to claim your termination had nothing to do with COVID.

Of course, not all workers who lose their jobs because of COVID have a wrongful termination claim. If the employer reduced or eliminated its workforce because COVID harmed its business operations, the affected employees may not have a claim for wrongful termination. The specific facts surrounding your termination must be examined by an experienced employment attorney like the experienced employment attorneys at Kokozian Law Firm, APC to determine whether you have a viable wrongful termination claim.

If you lost your job because of COVID, or if your employer or former employer has otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact Us via our online form.