Corona Virus Discrimination Retaliation Termination and Layoffs

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Practicing for 20+ years Austin Employment Lawyer and Houston Labor Attorney Jack Nichols fights against discrimination, retaliation, harassment and hostile work environments.

The Corona Virus COVID-19 and the Workplace**

The Corona Virus COVID-19 has not only created a health crisis, but also an employment crisis for our nation’s employees.  In the process of adapting to the economic and workplace changes brought about by the Corona Virus COVID-19, many employers are violating employee rights.  These rights include not only existing employment laws, but also brand new laws designed to help employees during the pandemic.

Here are some of the laws which may be applicable to employers and employees with regard to the Corona Virus COVID-19 in the context of employment:

Sabine Pilot: Refusing to Violate a “Shelter in Place” Order**

Texas law permits allows cities and counties to issue emergency “Shelter in Place” orders during pandemics like the Corona Virus COVID-19. However, certain “essential” employees are excused from the Shelter in Place orders.  In some county and cities, “essential” employees may or may not include those who work in the following areas, among others:

• Utilities/ Infrastructure, such as electricity, gas, transportation, waste, water, and airports
• Emergency Worker/First Responders response
• Healthcare Workers
• Grocery stores
• Liquor stores
• Food production workers
• Social services
• Media
• Auto repair
• Banks
• Hardware stores
• Plumbers, electricians, and exterminators
• Mail and shipping
• Restaurants that serve food for delivery and carryout
• Childcare services
• Funeral services.

Teleworking and/or Working from home may not violate a shelter in place order.

Some of these cities and counties may choose to enforce their Shelter in Place orders through criminal penalties. “Sabine Pilot” (see our Sabine Pilot page for more Information) makes it illegal for an employer to force an employee to commit a crime.

Accordingly, an employee may be able to sue an employer if the employee is terminated, laid off, demoted or is subject to a reduction in pay because the employer required that the employee violate a Shelter in Place order by going to work (except for teleworking and working at home) and the employee refused, and if: (a) the area where the employee lives or works is subject to a Shelter in Place order; (b) that Shelter in Place Order would make the employee subject to criminal penalties for going to work; and (c) the employee’s job is not “essential.”

Your city and county’s shelter in place orders may be posted on the city and county websites.

Work from Home/Teleworking Pay Requirements **

The Fair Labor Standards Act’s (FLSA) requirements regarding minimum wage and overtime apply regardless of whether the employee works at home or at an employer’s place of business. Please see our FLSA page for more details.

The FLSA also provides protection for employees for do not meet the legal requirements to be paid on a salary basis and who have been misclassified by their employer.  Such a misclassified employee may have a claim for minimum wage and overtime depending upon the amount paid and the hours worked.

The FLSA also provides protection for salaried employees who have their salary reduced for not working “full-time” or for working at home.

Workplace Accommodations for Employees with Disabilities**

In certain cases, the American’s with Disabilities Act (ADA) requires employers with 15 or more employees to offer a reasonable accommodation for employees with disabilities if such an accommodation will not impose an undue hardship on the employer.  See our Americans with Disabilities Act page.

Depending on the circumstances, you may be entitled to a reasonable accommodation under the ADA because of the Corona Virus COVID-19.  Examples may include if you have the Corona Virus COVID-19 or have a disability that puts you at a high risk because of the Corona Virus COVID-19 such as lung disease, heart disease, diabetes, or other immunocompromised medical condition.

Reasonable accommodations might include an isolated work place, protective equipment, working from home, and/or temporary leave

The ADA requires that both you and your employer work together in good faith to communicate about your specific needs and identify possible accommodations.

Paid Sick Leave, the Family First Coronavirus Response Act, and the Family Medial Leave Act**

Congress has recently passed legislation that requires Emergency Paid Sick Leave and Emergency Family and Medical Leave to help certain employees affected by the Corona Virus COVID-19 who work for employers with fewer than 500 employees.

The following chart, which was created by the Texas Employment Lawyers’ Association, explains how the new legislation as well as the Family Medical Leave Act (FMLA) apply to the Corona Virus COVID-19  Please see our Family Medical Leave Act page for more information on the FMLA.

Race, Color, Sex, Age, Disability, Pregnancy, National Origin & Religious Discrimination**

In the event that your employer is laying off (laid off) or furloughing (furloughed) employees because of the Corona Virus COVID-19 and/or reducing their hours, pay and benefits because of the Corona Virus COVID-19, the decision as to whose employment, hours, pay and benefits should be cut and/or who should be terminated should be made without regard to the employee’s Race, Color, Sex, Age, Disability, Pregnancy, National Origin and Religion.  Title VII protects employees from such discrimination when the employer has more than 15 employees. 42 U.S.C. section 1981 protects employees from race discrimination regardless of the number of employees an employer has.  For more information see our Discrimination in General page for more information as well as our Race, National Origin and Color Discrimination page, Age Discrimination in Employment Act page, Sex and Gender Discrimination page, Disability & Preganancy Discrimination (ADA & PDA) page, and Sexual Harassment & Other Discriminatory Harassment: Hostile Work Environment.

Retaliation for Making a Complaint of Discrimination, Harassment or a Hostile Work Environment**

Workers’ Compensation Retaliation**

A subscribing employer may not retaliated against an employee for making a workers’ compensation claim or reporting an injury.  For more information see our Workers’ Compensation in General page for more information.

National Labor Relations Act: Prohibiting Discussions about Working Conditions or Retaliating Against Workers **