It may be long after the worst waves of the COVID-19 pandemic that some California workers will be left wondering whether their “long-haul” symptoms entitle them to any employment law protections. Our Los Angeles disability discrimination attorneys believe we’re going to see this as the basis for a growing number of California wrongful termination claims in the coming months.
Case-in-point: Last month, a Central California hospital lab employee who is a long-haul COVID-19 sufferer sued her former employer for disability discrimination, retaliation violating medical leave laws and wrongful termination. According to the Fresno Bee, the worker first became sick with coronavirus in April of last year. Her doctor placed her on six weeks medical leave. She came back to work in June, but her symptoms persisted. Combined with her pre-existing conditions (diabetes, cardio-pulmonary disease and traumatic brain injury), she was unable to work for intermittent periods. Her doctor recommended periodic medical leave. However, she said when she asked her boss for the paperwork to file the request, she was reportedly told that “she better not.”
Over months, plaintiff was absent several times due to lingering viral effects. She claims though her absence was due to her medical condition, her employer disciplined and ultimately fired her for violation of the health center’s employee attendance policy.
If her allegations prove true (a spokesperson for the employer would not comment on pending litigation), it’s possible she’ll prevail. California statute grants employees up to three months (12 weeks) of leave in one year for serious medical ailments. Furthermore, it’s unlawful for employers to retaliate against workers for asking for or taking that leave.
As longtime L.A. wrongful termination lawyers, we’re concerned about a potential increase in cases like these. We’d caution employers against disciplining or especially firing workers as a first resort for simply exceeding medical leave – whether it’s for long-haul coronavirus symptoms or some other condition. It may be much more productive for all involved to simply have a conversation about how much more time off is needed.
In the Fresno case, the plaintiff is seeking not only her job back, but also lost wages, special damages and punitive damages.
A growing number of COVID-19 patients – even those who may have had mild illness initially – are so-called “long-haulers,” with wide-spanning symptoms that the U.S. Centers for Disease Control and Prevention explain can include:
- Shortness of breath
- Persistent cough
- Joint pain
- Chest pain
- Muscle pain
- Difficulty concentrating (“brain fog”)
- Depression and/or anxiety
- Heart palpitations
- Inflammation of the heart muscle
- Lung function abnormalities
- Acute kidney damage
- Neurological issues, including issues with concentration, memory, sleep, smell and taste
While these patients are navigating ongoing doctors’ appointments, mounting medical bills and their own well-being, many are also reportedly losing out on months of pay and sometimes pleading with their employers for alternate work arrangements and understanding.
Unfortunately, many employers are still unfamiliar with the prognosis for COVID long-haulers. Many of these workers have faced resistance from their employer when they ask for more than couple weeks of medical leave, particularly if they weren’t hospitalized. This is especially true with younger workers (for whom the perception is they won’t get as sick), particularly when many of their colleagues may have required a much shorter window to recover.
Some long-haul COVID sufferers may have recovered to the point they can return to remote work or perhaps even a physical office. But their ability to continue working often depends on how willing their employer is to extend accommodations, such as flexible or part-time work.
As our employment attorneys can explain, disability law can complex and challenging. Not all long-haul sufferers may be entitled to accommodations. For example, to be protected by the ADA (Americans with Disabilities Act), employees still need to show that even with an accommodation, they can perform the essential functions of their job. That may not be possible for every patient.
If you have been fired for COVID illness-related reasons in Southern California, our legal team can help you decide whether you’ve got a case.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949-375-4734.
Fresno lab worker who had long-term COVID is suing hospital, says she was fired for illness, March 25, 2021, By Robert Rodriguez, Fresno Bee