”Know your rights, all three of them,” goes a 1982 song by world music band The Clash. And, for those familiar with the cynical take on rights under the common law, the right to a job is not on the list.
Enter: “at-will” employment. Created in the late 1800s, the concept later became enshrined in law by Supreme Court justices during the Lochner era in response to progressive labor gains and laws enacted by state legislatures.
But what does “at-will” actually mean? Essentially that a worker has no right to their job and that they can be fired at their employer’s leisure—for any reason at all—except for: (1) unionized employees protected by collective bargaining agreements; and (2) employment decisions made on the basis of race, color, religion, sex, national origin, age, or disability. More on this later.
The soon-to-be pandemic known as the Wuhan Coronavirus (COVID-19) portends several thousand people taking time off of work in order to abide by quarantines, because of travel restrictions that foreclose against returning to work, or, obviously due to contracting and treating the illness itself.
When employees take time off, employers don’t much like it. And, extended periods of absence mixed with America’s at-will employment set-up could give some bosses the impression they’ve got carte blanche to fire employees out indefinitely due to Coronavirus.
But there are a few laws which might offer some U.S. workers some legal protections.
One of the major laws potentially applicable is the Family and Medical Leave Act of 1993 (FMLA). The law requires certain large employers (with 50 or more employees) to provide longterm employees up to 12 weeks of unpaid medical leave to account for recovery from a serious illness—and for other issues.
Another source of potential legal protection is the Americans With Disabilities Act of 1990 (ADA). This law created a suite of Civil Rights which, for our purposes, prohibits all medium-sized employers (those with 15 or more employees) from discriminating on the basis of disability in employment.
There are also various statutory exceptions which could offer piecemeal protections for workers impacted by the latest Coronavirus—but those apply on a state-by-state basis and several states are pure at-will with no exemptions to the standard recognized.
There are also various state laws which take the above-described federal protections and enlarge them substantially. Law&Crime surveyed employment law experts for a bit of clarity on the bigger picture here.
“I think ADA is more important for employees than FMLA,” Distinguished Professor of Law and Sidney Reitman Scholar at Rutgers School Law Alan Hyde told Law&Crime via email. “A disease that interferes with life activities is a disability under the Act, and the employer can’t discriminate.”
Hyde then sketched out a best-case scenario:
Indeed, the employer has to give reasonable accommodation, which probably means the employer has to let you work from home unless it’s impossible for you to perform your job duties from home. And the employer would have to hold the job for you until you are cleared to come back to work. The ADA also limits the employer’s ability to demand medical exams unless it’s a “business necessity,” but I think with a virus as communicable as Corona, the employer could ask for exams.
“The FMLA only applies to businesses with over 50 employees and to employees who have been there a year or more,” Hyde continued. “If the employee is actually under the care of a health care provider, and her illness prevents her from performing her job, she gets up to 12 weeks of unpaid leave. Obviously employees who can perform their duties from home will say they are disabled under the ADA and the employer must grant this reasonable accommodation. The FMLA only helps the employee who can’t work from home: food server, beautician–and only says you have to hold her job for her for 12 weeks, not that you have to pay her.”
Professor David C. Yamada is the Director of the New Workplace Institute and Co-Director of Employment Law at Suffolk University Law School.
In an email to Law&Crime he took a bird’s-eye view of the situation viz. the Coronavirus and at-will employment’s built-in precariousness.
“This is an important question, but at this point all we can do is speculate on what may be very uncharted waters,” Yamada noted before lighting out for those liquid territories. “[T]he federal Family and Medical Leave Act and perhaps the Americans with Disabilities Act may provide some job protections for employees who are suffering from coronavirus, or who are caring for family members so afflicted,” he said. “In addition, states like Massachusetts have enacted paid family leave laws that could provide both income replacement and job security for those who are sick.”
Yamada also offered something along the lines of a bearish take on what the practical import of federal laws really mean against a rising viral tide:
But in terms of how this affects the typical at-will employee, so much depends on how serious this turns out to be regarding both public health and economic impacts. Obviously if huge swaths of the workforce are infected with the virus, it will affect staffing and productivity wherever there’s a serious outbreak. Furthermore, if this reaches pandemic levels that trigger a 2008-style recession, then we could see layoffs in business sectors that are hardest hit. This would later trickle down to public sector and non-profit employment, as we saw with the Great Recession.
The bottom line: laws exist that offer avenues to protect your job if the worst happens. But the presumption in America is that you’re easily expendable—and any such protections in law would have to be affirmatively asserted by an employee against an employer. These things don’t work like magical incantations and even then the process could be long and drawn-out with an uncertain outcome.
[image via Justin Sullivan/Getty Images]
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