Employers Beware: Terminating an Employee with COVID-19 May Violate Several Federal Statutes

Throughout the COVID-19 pandemic, the issue of whether an employer may lawfully terminate an employee who has contracted COVID-19 has continued to arise. Terminating an employee because they have contracted COVID-19 carries significant legal risk. Some employers might consider the decision to terminate an employee a safety measure meant to protect employees and customers from coming into contact with someone who has had the illness. But doing so may run afoul of several federal statutes, including the Families First Coronavirus Response Act (FFCRA), as well as the Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA).

The FFCRA covers employers with fewer than 500 employees and provides certain leave benefits to employees for COVID-19-related reasons. Amongst other things, the FFCRA provides paid sick leave to employees, and it expands the FMLA to allow employees to take FMLA leave to care for a child whose school or child care provider is closed due to COVID-19. The FFCRA allows employees to take up to two weeks of paid sick leave if an employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis, or if the employee has been advised by a healthcare provider to self-quarantine. Importantly, an employer may not terminate an employee for taking paid sick leave under the FFCRA.

Employees who contract COVID-19 may also be protected by the FMLA. Employees are covered by the FMLA if they work at a location with 50 or more employees within a 75 mile radius, and have worked at least 1,250 hours within the previous 12 months. Unlike the FFCRA, employers with 500 or more employees may be covered by the FMLA, which requires employers to provide up to 12 weeks of unpaid leave to employees for certain qualifying reasons. One such qualifying reason under the FMLA is a "serious health condition."

The Department of Labor defines a "serious health condition" as a health condition that involves inpatient care or continuing treatment by a healthcare provider. Inpatient care includes an overnight stay at a hospital or medical facility. Continuing treatment by a healthcare provider includes three days of incapacity followed by either two or more follow-up visits with a healthcare provider or one follow-up visit followed by a regimen of continuing treatment.

Some cases of COVID-19—such as those requiring overnight stays at the hospital or continuing treatment from a healthcare provider—could qualify as a serious health condition under the FMLA. However, there have also been milder cases of the illness that may not qualify as a serious health condition. In the more serious cases, the employee could be entitled to unpaid leave under the FMLA. The leave is job-protected, meaning that the employee cannot be terminated for taking the leave.

Lastly, an employee with COVID-19 may be protected by the ADA if the employee's illness qualifies as a disability. According to the ADA, a disability is defined as "a physical or mental impairment that substantially limits a major life activity," as well as having a record of such impairment. The ADA lists several bodily functions that are considered major life activities, one of which is of particular relevance to COVID-19: respiratory functions. Ultimately, whether a medical condition is considered a disability is determined on a case-by-case basis, relying on how the medical condition impacts the employee in question. Nonetheless, COVID-19 is known to impact respiratory functioning, and individuals who have had severe cases of the disease have required ventilators. Others with the disease, however, have only had mild symptoms. Thus, COVID-19 is a disability under the ADA only in some cases, not all.

While there is clear legal risk involved with terminating an employee because they have contracted COVID-19, that does not mean an employer cannot terminate an employee with the virus for a reason not related to the illness. For example, if a business is conducting a mass lay off or a furlough due to economic-related reasons, an employee with COVID-19 may be included within that mass lay off or furlough. Regardless of the scenario, an employer should always proceed with caution when terminating an employee with COVID-19 due to the risks of violating either the FFCRA, FMLA, or the ADA.