Although the COVID-19 pandemic has changed many things about how companies operate, most employers still have formal disciplinary policies establishing ground rules for employee conduct and setting out consequences for failure to meet the expectations. If an employee still required to work in person has been exposed to the coronavirus and gotten tested without notifying her employer (and later is confirmed positive), can she be fired for violating a formal disciplinary policy prohibiting actions that pose a danger to others or jeopardize the business’s safe and efficient operations?
Knowingly Exposing Others To COVID-19
The short answer is a qualified yes. You may direct your employees to inform you if they have been exposed to COVID-19. To fully answer the question, one needs to know if the employee knew she was exposed to the virus, which prompted her to get tested:
- If the employee did know she was exposed but came to work anyway without knowing if she were positive, you would have ample grounds to terminate her for failing to comply with the disciplinary policy.
- On the other hand, if she was asymptomatic, not exposed, or didn’t know she was exposed to COVID-19, and got a test regardless, her coming to work before knowing the results would not, in itself, be a violation of the disciplinary policy.
What CDC Guidance Says
The U.S. Centers for Disease Control and Prevention (CDC) has provided guidance for employers about how to handle employees’ exposure to COVID-19 in its “Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19)”:
- Employees who appear to have symptoms (e.g., fever, cough, or shortness of breath) upon arrival at work or become sick during the day should immediately be separated from coworkers, customers, and visitors and sent home.
- If an employee is confirmed to have COVID-19, you should inform coworkers of their possible exposure but maintain confidentiality as required by the Americans with Disabilities Act (ADA). They should then self-monitor for symptoms.
Given the guidance, it’s consistent with an employer’s disciplinary policy to fire an employee for knowingly exposing coworkers, customers, and others in the workplace to the virus.
Employment Law Factors to Consider
In addition to the ADA’s confidentiality provisions, two other employment law issues come into play in this scenario: at-will employment and the Family and Medical Leave Act (FMLA).
At-will employment. In general, you can terminate an at-will employee at any time for no reason, as long as she isn’t being fired based on a protected class or because of a disability or infirmary. If you can truthfully say you’re terminating her for failing to adhere to your disciplinary policy (and not because she has COVID-19), you’re in the clear.
FMLA concerns. The FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. Covered employers must provide an eligible employee with up to 12 weeks of unpaid leave each year to take medical leave when she is unable to work because of a serious health condition, such as COVID-19.
If you’re subject to the FMLA and it’s determined you fired the employee because she had COVID-19 (and not because she violated the disciplinary policy), then you could be subject to liability under the FMLA.
In addition to the confidentiality provisions noted above, the ADA also plays a role in this scenario. Under the Act, you cannot fire an employee because of a disability. In broad terms, you cannot fire the employee because she has COVID-19.
Disparate treatment discrimination. In addition, be sure to avoid engaging in unlawful disparate treatment based on protected characteristics in decisions related to COVID-19 screening and exclusion. The ADA does permit you to make certain inquiries, however, if they’re related to the employee’s job and consistent with business necessity.
That’s especially true when an employee’s medical condition poses a direct threat to others’ health or safety. By that standard, if an employee knowingly violated your disciplinary policy, thereby posing a direct threat to the health or safety of coworkers or patrons, you likely wouldn’t be in violation of the ADA by firing her.
Bottom Line
Setting aside potential liability, it’s certainly a best practice to notify other employees of exposure to COVID-19. A disciplinary policy designed to further that practice likely won’t violate various employment laws if it’s followed properly.
For more information about how to deal with COVID-19 in your workplace, the Equal Employment Opportunity Commission (EEOC) has a FAQ section on its website.
Heath P. Straka is a partner with Axley Brynelson, LLP, in Madison, Wisconsin. He can be reached at hstraka@axley.com.