Can you fire an employee who knowingly comes to the office with COVID-19?

TL;DR – Damn skippy, you can.

Do you guys read “Ask a Manager” by Allison Green? It’s a fantastic HR blog where readers submit questions — some real zany ones — to Allison for her input.

Yesterday, I noticed that a reader had asked for Allison’s take on a coworker who knowingly exposed the reader to COVID-19. Apparently, for a few weeks, the coworker had passed off COVID-19 symptoms as allergies. Meanwhile, the coworker supposedly took no precautions like masking or using sanitizer and was going out to restaurants and bars. Oh, by the way, the reader and the coworker work about five feet from one another. Ultimately, the coworker gets a COVID-19 test, comes back to work while the results are pending, learns that the test is positive, doesn’t disclose this to the reader, and leaves the office.

Now, the angry reader doesn’t know what to do and wants to know her rights. And you can click here for Allison’s pragmatic take on that.

I’m going to step in and answer another question; that is, legally, can the company fire the coworker?

(Assuming all the allegations are true, of course.)

Well, sure, it can. I’m assuming the coworker is at-will. So, the company can end coworker’s employment at any time for any reason.

But, Eric, what if COVID-19 is an actual disability under the Americans with Disabilities Act? Firing the coworker may be disability discrimination, right?

Probably not.

First of all, whether COVID-19 is a disability depends on the situation. Here, it does not appear that the coworker was substantially limited in one more major life activities. Instead, COVID-19 appears to have impacted the coworker no worse than seasonal allergies. It doesn’t seem that the employer would be regarding the coworker as disabled either because her condition is likely transitory and minor.

Second, even if the coworker’s COVID-19 was a disability, that doesn’t give the coworker the right to come to work and infect others. Indeed, that’s some pretty poor judgment, to put it mildly.

I’d even go one step further. Remember when the feds charged a man for allegedly faking COVID-19 to skip work? The employer closed its facility for cleaning and paid its employees during the shutdown. The company spent over $100,000, plus lots of unnecessary quarantine.

The same logic could apply here. Maybe, the coworker’s action isn’t fraudulent or criminal. But, if the co-worker knowingly infected the workplace with COVID-19, that could give rise to a claim for restitution to compensate the company for clean-up costs and other consequential harm, like having others quarantine.

So, yeah, you can probably fire coworker. But, would you?

I’m curious, how would you handle the situation either from the perspective of the reader or the company? Email me and let me know.