Court: Employee fired for errors, not COVID leave

Posted July 22, 2022

In early 2020, Tanja began working for the company as an accountant, but she struggled in her role and made a number of mistakes. After months of working with her to help avoid mistakes, Scott, her boss, looked into replacing her as her performance was not improving. The company put an add out for Tanja’s position. Then COVID hit.

The company prohibited employees from entering the building if they had symptoms. Tanja had symptoms over a weekend but felt better on Monday and reported to work. She was told to go home and get tested. She tested positive and was told to stay home for 14 days according to the state requirement. While Tanja was out, Scott filled in and discovered more issues regarding her job performance. He decided Tanja should be let go immediately to protect the company’s financial status.

When Tanja was better and could return to work, Scott told her she was terminated by telling her it was best that they go their separate ways. Tanja sued, claiming that the company violated the then effective Families First Coronavirus Response Act (FFCRA) by terminating her for taking COVID leave. The employer pointed out the reason for the termination was Tanja’s errors, not that she took leave. It added that it paid Tanja for the leave, so she did not engage in protected conduct.

The court indicated that, because the termination occurred during leave, there could be a connection. Scott didn’t make a final decision about whether to terminate until after she began leave. The court then looked closer at the reason for the leave and agreed that the real reason for the termination was Tanja’s job performance. The employer had plenty of evidence to support this.

The court disagreed with the employer in relation to Tanja engaging in protected conduct under the FFCRA. An employer could pay an employee for taking leave and still discriminate against the employee for exercising that right to leave. In this case, there was no dispute that Tanja took leave under the FFCRA, so she engaged in protected conduct.

Key to remember: Always have strong documentation regarding reasons for a termination. If a decision to terminate is made, don’t delay; doing so could look like the decision isn’t really final.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.