Many Colorado employees have been terminated as the result of the COVID-19 Pandemic.   In some circumstances, these terminations give rise to legal remedies for employees. Lynn Feiger, Justin Plaskov, and their legal team wish to help these employees and, for the next three months, they will provide discounted initial legal consultations for employees terminated because of the Pandemic.

Situations where employees may have legal remedies available for COVID-19 related terminations include:

  • Employees who are terminated because they become ill from COVID-19.
  • Employees who are denied leave when they or close family members require their care as a result of COVID-19; and
  • Employees who are terminated because they oppose their employer’s refusal to keep employees reasonably safe from COVID-19.

Over the last few months, COVID-19 has transformed workplaces around the globe, including many in Colorado. Thousands of workers across the state have lost their jobs as their workplaces have downsized, or have temporarily or permanently closed because of the pandemic.

If you are one of those individuals impacted by COVID-19 at work, you may be entitled to legal recourse under federal, state, or common law.

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RETALIATION FOR TAKING COVID-19 LEAVE

Colorado employees impacted by COVID-19 may be eligible for paid or unpaid leave under the Family and Medical Leave Act (FMLA), the Family First Coronavirus Relief Act (“Family First Act”), and/or the Colorado Health Emergency Leave with Pay Act. To determine your eligibility for paid or unpaid leave, please reference our COVID-19 Frequently Asked Questions.   Employers are not permitted to retaliate against employees who take paid or unpaid leave pursuant to the above laws. In practice, this means that employers cannot penalize eligible employees for taking paid or unpaid leave.

Example 1: Samantha is eligible for paid leave under the Family First Act to care for her daughter, Liza, whose school closed because of COVID-19. If Samantha’s employer, Business Company, fires her because she used paid leave, Samantha may have a claim for retaliation under the Family First Act.

Example 2: Sean develops a serious health condition as a result of COVID-19. When Sean, who is eligible for FMLA, requests twelve weeks of leave, his employer, Restaurant Management, tells him that if he takes leave, the company will end his employment. In this instance, Sean may have a claim for interference or retaliation under the FMLA.

ACCOMMODATION RETALIATION

Employees who experience severe coronavirus symptoms or have a pre-existing condition that makes them more susceptible or at risk for coronavirus may be eligible for reasonable accommodations under the Americans with Disabilities Act (ADA), the Rehabilitation Act, the Colorado Anti-Discrimination Act (CADA), and/or the Pregnancy Discrimination Act (PDA). Eligibility under any one of these laws depends on the specifics of the employee’s health condition and the type and size of the employer.

Employees with COVID-19, or who are more susceptible or at risk for COVID-19, are not guaranteed accommodations under any of these laws. Employees who want to utilize one of these laws must not only ask their employers for an accommodation, but be prepared to establish their medical condition or “disability,” and participate in conversations with their employer to find a reasonable accommodation under the particular circumstances.

Employers may not retaliate against eligible employees who request or receive reasonable accommodations under these laws.

Example 3: Allison is a Mechanical Engineer II at Engineering Company. She is twenty weeks pregnant and recently learned that she has gestational diabetes. Concerned about her risks of contracting COVID-19, Allison asks Engineering Company if she can perform her job duties remotely. In response, Engineering Company questions her commitment to the company and demotes her to Mechanical Engineer I. Under these circumstances, Allison may have a claim for retaliation under several laws, including the ADA and PDA.

WRONGFUL DISCHARGE AGAINST PUBLIC POLICY

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.

WHISTLEBLOWING CLAIMS

The Occupational Safety and Health Act (OSHA) requires employers to maintain a safe and healthy working environment that is free from recognized hazards. Employees concerned that their employers are not reasonably protecting them from the spread of the novel coronavirus may make a complaint to their employer or to the Occupational Safety and Health Administration.

Employers may not discharge or otherwise discriminate against employees who make safety and health complaints.

Example 6: Mara works on the assembly line at Factory Warehouse. Factory Warehouse continues to have its assembly line employees work a foot apart from each other without masks or gloves. Factory Warehouse is also not properly sanitizing the facility between shifts. When Mara raised these concerns to her supervisor, nothing changed. Mara then decided to file a complaint with the Occupational Safety and Health Administration.Factory Warehouse fired Mara after learning about her complaint. Mara may have a claim for retaliation under OSHA.

PROTECTED CONCERTED ACTIVITY

Groups of employees may band together to change unsafe working conditions connected to COVID-19. These groups may bring complaints to the attention of management, or they may refuse to work altogether if they share a reasonable, good faith belief that their working conditions are unsafe. Under these circumstances, they may be protected from retaliation under the National Labor Relations Act (NLRA).

Example 7: A large group of workers walk off the job during their lunch hour to protest unsafe working conditions connected to COVID-19 at Grocery Store USA. In response, Grocery Store USA fires all of the striking workers and replaces them with new employees. The fired workers may have legal claims under the NLRA.

THE ATTORNEYS AT LOHF SHAIMAN ARE HERE FOR YOU

If you have been terminated from your job or if you are considering asking for an accommodation, taking leave, or complaining about unsafe working conditions connected to COVID-19, and wish to know more about your rights or obtain legal representation,  contact the employment attorneys at Lohf Shaiman Jacobs Hyman & Feiger at 303-753-9000.