As the coronavirus continues to spread throughout Ohio and efforts to stop it intensify, the state’s economy remains at risk — and along with it the jobs of thousands of Ohioans.
Since the pandemic began in March our office has been inundated with calls from people who want to know if they can be fired for staying home because they fear being infected or must care for loved ones.
The answer is yes.
That response inevitably leads to a second question: If I’m fired can I collect unemployment?
The answer is, well, maybe.
This answer often causes confusion because many people don’t understand what it means to live in a state governed by the “at-will” employment doctrine. Today we’ll provide some enlightenment, along with a lot of caveats because this is an incredibly complex area of the law.
Explaining what “at-will” means is a good place to start. In Ohio, an employer may terminate an employee for any reason unless a contractual relationship exists, the worker is covered by a collective bargaining agreement or the firing violates state or federal laws that prohibit discrimination in the workplace.
In essence, this means if you walk into work one day and say “Hi, boss,” your boss has the right to respond by saying “Hi, bye, you’re fired.” That’s it. You’re gone and there’s generally nothing you can do about it except pack up your stuff, file for unemployment and start looking for a new job.
This is where things get interesting and complicated. You’ve been tossed for no reason so being approved for unemployment should be a breeze. If you believe that, I’m sure you’re a big fan of the tooth fairy, the Easter Bunny and Santa Claus.
When you file for unemployment, a nice person at the Ohio Department of Jobs and Family Services will determine if you are eligible for benefits. Generally speaking, if you were canned through no fault of your own, i.e, the boss didn’t like you or the way you said "Hi," you should be approved. But, if your employer asserts you were terminated for “just cause” which could include anything from poor performance to committing a crime, you may be denied.
All of this leads to a discussion of whether someone who quits their job for COVID-19 related reasons is eligible for benefits. For decades, people who voluntarily quit their jobs were not entitled to unemployment compensation. Like many things in our world, however, the pandemic has changed things.
Under an Executive Order issued by Gov. Mike DeWine earlier this year, an employee who chooses not to work may receive benefits if they can demonstrate their decision is based on one of the five good causes listed in the directive, including whether the employee was older than 65 or whether the employer had “tangible evidence of a health and safety violation.”
I and many others believe the governor’s order should have gone farther and shielded employees who do not want to work due to coronavirus-related concerns from termination under Ohio’s at-will employment doctrine.
Unfortunately, he didn’t, which means that cold, heartless employers can fire employees who choose to protect their health and care for their families.
It’s not right. But it is the law.
— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to firstname.lastname@example.org.