Can You Be Fired Due to COVID-19?

The short answer: you generally cannot be fired for simply contracting COVID or for refusing to receive a vaccine or other employer-mandated medical procedure that conflicts with an honest medical or religious exemption.

However, employment cases related to COVID-19 firing are seldom that simple. Financial downturns, such as those that resulted from the pandemic, are a legally legitimate reason for laying off employees, as long as the terminated employees are not discriminated against – i.e. selected for layoff based on a protected class such as, for example, their race, gender, religion, age, or refusal to violate their doctor’s or clergy’s note.  California is an “at-will” employment state, meaning generally your employer can fire you for any or no reason, with no warning and without the need to establish just cause – as long as they do not fire you for an unlawful reason (such as, e.g., discrimination or retaliation).  An example of such discrimination or retaliation could come in the form of termination because of an employee’s refusal to subject herself to a medical procedure or vaccine due to a sincerely held religious belief or a medical condition or disability.

In California, neither the California Supreme Court nor the Ninth Circuit Court of Appeals (the federal appelate court covering federal cases arising in California) have yet squarely addressed a case directly on point where a COVID mandate was pitted against an employee’s sincerely held religious beliefs.  However, other jurisdictions that have addressed the issue head-on have upheld employees and/or citizens Title VII or First Amendment Rights to be free from discrimination based on their sincerely held religious beliefs not to be forced to receive the COVID vaccine.  See, e.g. Dahl v. Bd. of Trs. of Western Mich. Univ. (6th Cir. Oct. 7, 2021, No. 21-2945) 2021 U.S. App. LEXIS 30153, at *1.  On October 7, 2021, the U.S. Court of Appeal for the Sixth Circuit upheld the rights of NCAA athletes to refuse mandated COVID vaccines upon submitting a religious exemption request. Western Michigan University mandated that its student athletes get vaccinated or forgo playing sports for the University. (Id.)  The Appellate Court disagreed and effectively said that Western Michigan University cannot simply disregard its students’ religious exemption requests. (Id.) This ruling is now the law of the land in the Sixth Circuit.

The Ninth Circuit Appellate Court has not yet directly yet addressed this issue, but it has previously been less than enthusiastic about enforcing laws that protect individuals’ religious and first amendment rights when conflicting with COVID vaccine mandates, prompting the U.S. Supreme Court to repeatedly admonish the Ninth Circuit for its failure to uphold religious freedoms in the face of COVID-19 mandates.  The U.S. Supreme Court has essentially signaled that it will not hesitate to overturn any Ninth Circuit ruling that upholds COVID-19 vaccine mandates against sincerely held religious exemptions.  Specifically, in Ritesh Tandon, et al. v. Gavin Newsom, Governor of California, et al., the Supreme Court disavowed the Ninth Circuit’s watered-down views of the statutory and constitutional protections for religious freedom in comparison to the State’s police power during the COVID-19 pandemic.  There, SCOTUS admonished the Ninth Circuit’s repeated erroneous rulings, stating: “This is the fifth time the Court has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise. See Harvest Rock Church v. Newsom, 592 U.S. ___ (2020); South Bay, 592 U.S. ___ ; Gish v. Newsom, 592 U.S. ___ (2021); Gateway City, 592 U.S. ___.”

Just this month, federal courts in the Sixth Circuit and the Eleventh Circuit have both blocked (i.e., issued injunctions against) the Biden Administration’s recent nationwide COVID vaccine requirement for individuals who have contracts with the federal government.  The Sixth Circuit this month has even blocked OSHA’s mandate that certain federal government workers either get vaccinated or submit to regular COVID testing.  These ruling tend to signal that employees with sincerely held religious beliefs or certain medical conditions will likely continue to retain their freedom to make their own medical decisions, rather than being forced to subject to their employer’s medical demands.

Based on the forgoing, if you believe that you are the victim of a wrongful dismissal, termination or COVID-mandate, you may be able to sue for damages, and possibly, even get your job back. Here are questions you need to ask.

Are you under contract?

Employees under contract may be buffered from layoffs. This is true whether the employee is under an individual or collective contract agreement.

Individual contracts typically cover executives and specialty professionals, such as doctors and engineers. Depending on what is stated in the individual contract, certain clauses may prevent the employer from terminating the employee outright. To see if you have stipulations in your contract that prohibit your layoff, have an employment attorney in San Diego review your contract for you.

A collective contract, which is the result of a collective bargaining agreement, governs the actions between employer and unionized employees. If you are under a collective contract, the union you belong to can help you determine if your company is in violation of your collective contract by laying you off. If you are fired for any reason apart from the ones stipulated in your contract, you may have a claim for wrongful termination. Aside from consulting your union, it can also help to contact an employment lawyer to discuss the merits of your case.

Were you discriminated against?

Unfortunately, too many companies use layoffs to hide the fact that they are discriminating against a protected class of workers. Even if a business is experiencing legitimate financial hardship due to the effects of COVID-19, it still cannot conduct layoffs in a manner that discriminates against age, race, religion, gender, sexual preference, disability, and others.

To cite an example, a company that mandates COVID vaccines without any realistic consideration for religious or medical exemptions may be violating your rights under the FEHA or Title VII – particularly if they fail to even engage in an interactive process toward offering reasonable accomodations.  As another but different example, a restaurant looking to hire more youthful looking or cheaper workers in a particular age group may try to purge older workers or even older women from its front of house staff. If evidence suggests that the layoff was discriminatory, you may have grounds for a lawsuit.

While discrimination may be proven by proving that the employer intended to discriminate, intent does not necessarily need to be established – as long as the layoff disproportionately affects a protected group, it can be grounds for a wrongful dismissal lawsuit. Since proof of discrimination is not always obvious, it’s in your best interest to consult a discrimination lawyer to find out whether your layoff was lawful or not.

Are you being punished?

Just as a business can discriminate against an employee by targeting them for layoff, an employer can also use a layoff to retaliate against an employee. For example, an employer might tell managers to get rid of employees who have filed discrimination or harassment complaints.

Even if the company has a legitimate need to reduce workforce numbers, it can’t use layoff as a reason to fire employees for exposing a toxic or hostile work environment. If an employee has exercised a legal right or complained of illegal conduct and loses their job in the process, even if that job loss happens in the context of a mass layoff, the employee may still have a legal claim for wrongful dismissal.

Did you receive a layoff notice?

Under the Worker Adjustment and Retraining Notification (WARN) Act, companies and organizations conducting mass layoffs are required by law to give advance notice to employees that they plan to let go. If you have been laid off without notice, and your employer’s type of business is covered by the Act, then you may be entitled to receive pay for up to 60 days, depending on how long you should have received your notice.

Although the WARN Act doesn’t prevent you from getting fired, it does equip you with a way to get some form of compensation for your employer’s failure to give you notice.

Get legal help today

If your answer is yes to any of the questions above, then it may be time to contact Hogue & Belong, Attorneys at Law. Our team of experienced lawyers are well equipped to help you win your wrongful termination case.


Related Posts

What the ADA Means for Employed Persons with Disabilities

The Americans with Disabilities Act of 1990 (ADA) protects differently-abled workers and applicants from job discrimination. Under the law, persons with physical or mental impairments that substantially impact major life activities are protected from discriminatory...

California Laws on Restroom Breaks

Sufficient restroom breaks are important to the health and well-being of employees. California laws impose rules and standards for work breaks, including restroom breaks, in the workplace. Violations of these rules can affect work performance and result in loss of...

Contact Us and Get a Free Consultation with the Hogue & Belong Law Team