By Attorney Brian Hatch
No one likes to do the dirty work of firing employees or cutting pay during Covid-19. But in the current slashing of income during the pandemic we are going through, it will eventually be necessary just for a business to stay afloat. How do you terminate employees legally you can no longer afford? Or cut their pay?
There have been some life-savers thrown to employers to try to save the jobs of employees who otherwise would have been laid off permanently during a business closure. Many employers have furloughed their employees to allow them to collect unemployment benefits but still maintain their positions after the immediate crisis is over. The Paycheck Protection Program allows employers credits if they agree to rehire those employees. But what if you need to terminate those employees because your business just can’t keep in business when they come back? Times are slow now, but there is no guarantee business will pick up, especially to Pre-COVID-19 levels. Even with government bailouts, there might not be enough help to save all employee’s positions.
Terminating these employees can be painful, but it is necessary, and there are legal ways to do it. First, the ways not to do it must be stated. There cannot be intentional discrimination on the basis of age or disability or race or another protected class. There can be a fine line to tread when a governor’s directives caution not to urge older employees to become too active in the workplace because of their increased risk with their age group. For that reason, check with the older employee to see if they have any underlying condition which would make them even more at risk than just because of their age. Perhaps conditions like asthma, diabetes, or some other condition that is not considered a disability (if they do not interfere with an essential life function, especially when fully controlled) under the ADA is a reason other than age to consider telling an employee that they may have greater risk in the workplace to get sick. If it is a condition that has to be accommodated before the virus hit then it shouldn’t be considered as part of a decision to terminate, however.
Along the lines of discussing protected classes for disability law purposes, is a COVID-19 positive test a disability under the ADA? Most likely no, since it is a temporary condition and having it is a safety hazard to others in the workplace. Allowing a COVID-19 positive employee or someone who has been in constant close contact COVID-19 positive persons, in the workplace could be an OSHA violation and against the employer, obligations to keep the workplace hazard-free. With more and more contact tracing becoming the norm, there are going to be questions of how far removed from the risk of contagion by an employee has to be before they cannot be in the workplace under OSHA regulations. But OSHA is a fallback excuse for employment termination if they are fearful of creating a hazardous workplace, as long as it is not abused.
Cutting the pay of an employee because of a lack of income requires a similar analysis regarding discrimination under other employment laws. But “business reasons” are usually a very legitimate defense to cutting someone’s pay, even if they are a protected class. Other concerns enter in here too, however. If the employee is on leave under FMLA they are protected from termination and must be returned to their previous position or a similar position with similar pay. Massachusetts laws regarding family leave don’t take effect until January of 2021, but they also protect workers who use that state law, which has been funded by both employer and employee contributions for some time now. Remember, however, that once FMLA leave is up, those protections disappear. Also, employers who can show legitimate business reasons have some protection as long as they don’t intentionally fire or cut the pay of an employee just because they took an FMLA leave.
Protections under the Families First Coronovirus Response Act (FFCRA) also exist for employees who wish to return to work. But this protection is not absolute, and if it appears that an employee is using that act, not for legitimate COVID-19 related reasons, then they can be terminated. Employees abuse COVID-19 protections and also tend to exaggerate their fears of returning to the workplace without a justifiable reason. If their fears are unjustified or their reasons not true then they can be let go. The standard is what would a reasonable person think is enough fear to not come back or in the employer’s case, is the employer’s thinking reasonable when they consider the employee’s fears illegitimate? Once again, the subject of disability surfaces if the fear of an employee is related to a mental diagnosis by a physician.
Releasing employees or cutting their pay is an emotionally charged decision that is sometimes tortuous for a good employer to go through. But most employment attorneys will tell you that if there are legitimate business reasons for doing so, there are sometimes excuses, at least legally, to make that tough decision.
Attorney Brian T. Hatch, J.D., M.S.
8 North Main Street Ste 403
Attleboro, MA 02703
(508)222-6400
brianhatch@hatchlawoffices.com
