Employees who are terminated in connection with COVID-19 may have common law claims for wrongful discharge against public policy. Wrongful discharge against public policy claims arise when an employer fires an employee after he/she/they refuse to engage in illegal conduct or are denied performance of a public duty or exercise of an important job-related right or privilege. For the claim to be actionable, it must impact public health, safety, welfare, or another clearly expressed public policy.
Over the past few months, Governor Jared Polis established a public policy prohibiting terminations based on the novel coronavirus through his implementation of numerous Executive Orders pertaining to COVID-19, including Executive Orders 2020-003 (Declaring a Disaster Emergency), 2020-017 (Ordering Coloradans to Stay at Home), and 2020-044 (Safer at Home).
Example 4: Beth, a Registered Nurse in the Emergency Department, works for Health Hospital. Beth tests positive for COVID-19. Her symptoms include a dry cough, sore throat, and difficulty breathing. Beth submits a letter from her doctor to her employer indicating her positive diagnosis and requirement to self-isolate for two weeks. One week into her self-isolation, Health Hospital informs Beth that she is fired because it needs another Registered Nurse to cover her shifts. Under these circumstances, Beth may have a claim for wrongful discharge against public policy.
Example 5: Katie is employed as a cook at Nursing Home Place (“NHP”). NHP houses and cares for the elderly. Katie requests personal protective equipment (PPE) from NHP because she is concerned about passing COVID-19 to residents. NHP responds that it will not provide her with PPE because she does not work directly with residents. The next day, NHP fires Katie for a reason unrelated to PPE. Katie, like Beth, may have a claim for wrongful discharge against public policy.