It may not be legal now to fire an at-will employee who misses work with a fever.

An employer may find itself in hot water for firing an employee absent with COVID-19 symptoms — even a low-grade fever — regardless of whether s/he is eligible for leave under the Families First Coronavirus Response Act.

How do I know this?

Well, the other day on LinkedIn, I saw this status update from an employment attorney named Bill Mansour. Mr. Mansour represents an individual (let’s call him “Plaintiff”) who previously worked for a local Pennsylvania healthcare provider. According to Mr. Mansour, Plaintiff’s employer (let’s call that company, “Defendant”) fired Plaintiff in April because Plaintiff missed some time from work.

Ok, what’s the big deal? Both Mr. Mansour and Plaintiff conceded that Plaintiff was an at-will employee. He could lose his job for any reason or no reason at all.

Except, this was a little different.

The Public Policy Exception to At-Will.

You see, Plaintiff alleges that he informed Defendant that he had a fever, and his supervisor instructed him to stay home because Defendant feared that Plaintiff might have coronavirus.

(Fortunately, it turns out that Plaintiff did not have COVID-19.)

But, back in April, both the CDC and the Commonwealth of Pennsylvania were advising citizens to quarantine, especially if they had COVID-19 or coronavirus symptoms. So, Mr. Mansour’s client self-isolated at home and contacted a doctor. Nonetheless, Defendant allegedly fired Plaintiff due to “unexcused” absences.

And then Plaintiff sued, alleging that Defendant had violated the public policy exception to the at-will employment doctrine. In plain English, you can’t fire someone for refusing to do something unlawful — even an at-will employee. According to Mr. Mansour’s LinkedIn status update, he and his client believed that the “firing under these circumstances, at the height of this pandemic, was unfair…The public policy that it violated, we argued, was clear and simple: if you’re sick, STAY HOME!”

And, apparently, a Pennsylvania trial court judge agreed.

The ruling itself is what we lawyers call a “So Ordered.” That is, it doesn’t include the court’s rationale. Although I have read the Plaintiff’s complaint and that parties’ briefing, I’ll defer to Mr. Mansour to explain why the court did what it did:

“[F]or the first time in Pennsylvania, a judge ruled that an employer cannot fire an at-will employee for missing work due to COVID-19 symptoms. According to the court, doing so would be a violation of the strong Pennsylvania public policy that sick or symptomatic people should stay home and self-isolate. Therefore, the judge denied [the employer’s] attempt to have the case dismissed and ordered them to defend the lawsuit.”

Congratulations to Mr. Mansour and his client on this early victory.

Takeaways.

Remember that the FFCRA (and some state/local laws) protects many employees and provides paid sick leave for COVID-19 reasons. Plus, there may be a duty to accommodate someone with COVID-19 under the Americans with Disabilities Act (or state/local law). Also, the good old Family and Medical Leave Act may require that you offer covered leave for someone with a serious health condition.

Plus, there’s this public policy issue. Yes, this is only a trial court decision that would not bind other courts within the Commonwealth of PA, let alone judges in other states. But, it’s a sobering warning to employers that fire anyone sick or symptomatic who must self-isolate.

Last chance!

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