Determining if an employer can dismiss an employee ill with COVID-19 is governed by multiple layers of employment law. The legality of termination depends heavily on specific circumstances, including the employee’s tenure, the employer’s size, the severity of the illness, and the job’s geographic location. Navigating this situation requires understanding the interplay between federal protections, state-specific mandates, and the baseline doctrine governing most American employment relationships. While an employee’s job security during illness is not absolute, an employer’s ability to terminate is also not without consequence.
Understanding At-Will Employment and Its Limits
Most employment relationships in the United States operate under the “at-will” doctrine. This means an employer can terminate an employee for almost any reason, or no reason at all, at any time, and the employee is free to leave without notice. While this doctrine establishes broad freedom for employers, it is not unlimited.
The at-will standard is subject to exceptions that prevent wrongful termination. Termination is illegal if it violates federal or state anti-discrimination laws, such as firing an employee based on a protected characteristic like disability. Exceptions also include the public policy exception, which protects employees fired for exercising a legal right, and the implied contract exception, which may arise from an employee handbook. These limitations define when an illness-related firing becomes an unlawful act.
General Federal Protections for Serious Health Conditions
Federal law provides two main avenues for job protection when an employee faces a serious health condition, which can include COVID-19. The Family and Medical Leave Act (FMLA) offers eligible employees the right to take unpaid, job-protected leave for specified medical reasons. To qualify, an employee must have worked for a covered employer—one with 50 or more employees within a 75-mile radius—for at least 12 months and logged at least 1,250 hours in the previous year.
The FMLA grants up to 12 weeks of leave per year for a serious health condition that prevents the employee from performing their job functions. A serious health condition is defined as an illness involving inpatient care or a period of incapacity lasting more than three consecutive full calendar days that involves continuing treatment by a healthcare provider. If the employee meets these criteria and the employer is covered, the law requires their job or an equivalent position to be restored upon their return from leave.
The Americans with Disabilities Act (ADA) offers a separate layer of protection by addressing the long-term effects of the illness. COVID-19, particularly Long COVID, may be considered a disability under the ADA if it results in a physical or mental impairment that substantially limits one or more major life activities, such as breathing, walking, or concentrating. If the condition qualifies as a disability, the employer must engage in an “interactive process” to determine a reasonable accommodation.
Reasonable accommodations are modifications that allow the employee to perform the essential functions of their job. Examples can include a modified work schedule, additional unpaid leave, or the option for remote work. An employer is only excused from providing an accommodation if it would pose an undue hardship, meaning significant difficulty or expense, on the operation of the business. The ADA applies to employers with 15 or more employees, which is a lower threshold than the FMLA.
Determining If Termination Is Legal or Retaliatory
The legality of a termination hinges on the underlying reason for the action. An employer cannot legally terminate an employee because they exercised a right protected by federal laws like the FMLA or the ADA. This prohibited action is known as retaliation. Retaliation can be overt, such as an immediate firing upon requesting FMLA leave, or more subtle, such as a demotion, a sudden negative performance review, or exclusion from meetings after returning from leave.
An employer may terminate an employee who is sick if the termination is based on a non-discriminatory business reason unrelated to the protected activity. For example, if an employee exhausts all 12 weeks of FMLA leave and remains medically unable to return, the employer may legally terminate them, provided no further accommodation is required under the ADA. Similarly, if the termination is based on documented performance issues that predate the illness, or if the position is eliminated as part of a legitimate company layoff, the firing is likely lawful. The central legal inquiry is whether the protected activity was the determining factor in the employer’s decision.
State and Local COVID-19 Specific Leave Laws
Although initial federal COVID-19 specific paid leave mandates, such as the Families First Coronavirus Response Act (FFCRA), have expired, many state and local jurisdictions have implemented their own temporary or permanent sick leave laws. These local laws often fill the gap left by federal expirations by providing specific paid time off for COVID-19 diagnosis, quarantine, or vaccination. The protections and eligibility requirements under these localized mandates vary significantly, creating a complex patchwork of rules across the country.
Some states, such as California, have enacted supplemental paid sick leave laws that specifically cover time off for COVID-19 related reasons, including caring for a family member or being subject to a quarantine order. Cities and counties have also passed their own ordinances, which may offer broader coverage or apply to smaller employers not covered by federal law. Employees must determine the specific regulations in their jurisdiction, as the law most beneficial to the employee generally prevails when conflicts arise between federal, state, and local provisions.
Protection Against Retaliation for Reporting Unsafe Conditions
Employees terminated after raising concerns about COVID-19 safety may have a claim under whistleblower protection laws, even if the termination is unrelated to their own illness. The Occupational Safety and Health Act (OSH Act), enforced by the Occupational Safety and Health Administration (OSHA), protects employees from retaliation for reporting unsafe working conditions. This includes reporting workplace hazards related to COVID-19, such as inadequate ventilation or failure to follow safety protocols.
To establish a case of retaliation, the employee must demonstrate three elements. First, they engaged in a protected activity. Second, the employer took an adverse action, such as firing. Third, a connection exists between the protected activity and the adverse action. Employees who believe they have been retaliated against must file a complaint with OSHA within 30 days of the adverse employment action.
Steps to Take If You Are Terminated Due to Illness
If termination occurs while an employee is sick or shortly after a COVID-19 related absence, immediate action is important to protect legal rights. The first step involves thoroughly documenting every interaction, including the termination letter, all communications with supervisors or Human Resources, and doctor’s notes confirming the illness. Documentation of previous positive performance reviews or other evidence that undermines the employer’s stated reason for termination should also be gathered.
The employee should then review the company handbook or collective bargaining agreements to understand official policies regarding sick leave and termination procedures. Following this review, the employee should consider filing an administrative complaint with the appropriate government agency. This might be the Equal Employment Opportunity Commission (EEOC) for ADA violations or the state’s labor board for local law violations.
These complaints often have strict filing deadlines, typically between 180 to 300 days from the date of the adverse action. Consulting with an employment lawyer is advisable to assess the evidence, determine which federal or state laws apply, and guide the process of seeking remedies like lost wages or job reinstatement.