The COVID-19 pandemic national emergency ( March 13, 2020 to April 10, 2023) - presented unparalleled challenges to both public and private workplaces. For federal employees terminated during this period, especially those fired by the Biden administration, legal questions arise regarding potential breaches of labor laws, including the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and specific provisions under U.S. disaster and pandemic laws.
This paper explores these potential violations, focusing on federal workers terminated during the declared National Emergency for COVID-19, including political appointees under the Trump administration. Remember, COVID Death Tripled after Trump left office and Trump’s opposition such as Pelosi and Biden fought Trump’s travel bans potentially getting untold Americans infected with COVID.[i]
In Spicer v. Biden, U.S. District Judge, Dabney L. Friedrich, dismissed Sean Spicer's lawsuit against President Biden over his removal from the U.S. Naval Academy Board of Visitors. The judge found that federal law did not protect Spicer from being removed from the board. With this case, all Biden appointees to boards and commissions and potentially any other federal worker can be terminated immediately. [ii] Interestingly, this leaves open the possibility of any Trump appointee to come back to their position if they were terminated either during the COVID emergency, or while they actually were suffering from COVID or Long COVID. It also leaves open the door for President Trump to put whomever he wants back into their 2020 job without investigations, delays, clearances or Senate review.
I. The National Emergency and U.S. Disaster Area Declarations
The COVID-19 pandemic prompted the following key legal declarations, forming the backdrop for federal employment decisions:
- National Emergency Declaration: President Trump declared a National Emergency on March 13, 2020, under the National Emergencies Act. This activated various emergency authorities, including labor and health protections.¹
- Major Disaster Area Declarations: Beginning in March 2020, all 50 states, the District of Columbia, and territories were designated as disaster areas under the Stafford Act, granting federal employees additional protections and flexibility under labor laws.²
- Pandemic Guidelines: The Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA) issued guidance mandating workplace safety, accommodations, and support for workers affected by COVID-19.³
These declarations created a legal framework mandating federal agencies to act with heightened care when handling employee terminations, especially for those experiencing illness or disability related to COVID-19.⁴
II. Family and Medical Leave Act (FMLA) and COVID-19
The FMLA provides job-protected leave for eligible employees who experience a serious health condition or need to care for family members. During the pandemic, the FMLA’s provisions became especially critical for workers affected by COVID-19 or related complications.⁵
- Protections During the National Emergency: Federal agencies were obligated to inform employees of their FMLA rights if they:
- Contracted COVID-19 or were experiencing long COVID.⁶
- Needed leave to care for family members affected by the virus.⁷
- Were impacted by school or childcare closures.⁸
- Violations in Terminations: Federal employees terminated during or shortly after FMLA leave could argue that their rights were violated if their agency failed to provide adequate notice of their rights or retaliated against them for taking leave.⁹
III. Americans with Disabilities Act (ADA) and Rehabilitation Act
The ADA and the Rehabilitation Act protect federal employees with disabilities and require agencies to provide reasonable accommodations for qualified individuals. During the pandemic:
- COVID-19 and Long COVID as Disabilities: The Department of Justice and Equal Employment Opportunity Commission (EEOC) classified long COVID as a disability in July 2021. Employees with significant post-COVID symptoms (e.g., fatigue, respiratory issues, or brain fog) were entitled to accommodations such as remote work or extended leave.¹⁰
- Agency Obligations: Federal agencies should have:
- Provided notice to affected employees of their right to request accommodations.¹¹
- Allowed employees to take disability leave or return to work upon medical clearance by their personal doctor.¹²
- Avoided terminations unless all reasonable accommodations had been exhausted.¹³
- Violations: Employees terminated without being offered reasonable accommodations or disability leave may have valid claims under the ADA or Rehabilitation Act.¹⁴
IV. Pandemic Labor Protections and Government Obligations
During the COVID-19 pandemic, several labor protections and guidelines specifically addressed workplace rights:
- OSHA Pandemic Standards: OSHA required employers, including federal agencies, to maintain safe working conditions, including providing remote work options or protective measures for employees at higher risk.¹⁵
- U.S. Disaster Laws: Under Stafford Act provisions, disaster declarations imposed a duty on federal agencies to protect and support their workforce. Terminating employees without offering them opportunities for disability leave or accommodations likely violated these provisions.¹⁶
- Duty to Notify Sick Appointees: Federal agencies were obligated to:
- Notify all sick employees, including political appointees, of their right to take disability leave.¹⁷
- Inform them of the option to return to work upon medical clearance by their personal physician.¹⁸
- Ensure that employees recovering from COVID-19 were not penalized for taking leave.¹⁹
V. Retaliation Against Political Appointees
Political appointees under the Trump administration faced unique vulnerabilities during the transition to the Biden administration. Many were dismissed during the height of the pandemic without consideration of their health status or labor rights.
- Special Considerations for Appointees:
- While political appointees often serve at the will of the President, their terminations during the pandemic must still comply with labor laws, including the ADA and FMLA.²⁰
- Agencies should have ensured that terminated appointees were given the chance to take disability leave or return to their positions once cleared by a doctor.
- Statistical Context: COVID-19 deaths tripled after Trump left office, highlighting the prolonged severity of the pandemic. Dismissals during this crisis period could be viewed as premature and insensitive to public health realities.
VI. Other Labor Protections and Remedies
Federal employees may invoke additional labor protections if their terminations violated pandemic-related laws:
- Whistleblower Protections: Employees terminated for raising safety concerns related to COVID-19 may have claims under federal whistleblower statutes.²¹
- EEO Complaints: Claims of discrimination based on race, age, or disability could be pursued with the EEOC, particularly if older or minority employees disproportionately affected by COVID-19 were dismissed.²²
- Merit Systems Protection Board (MSPB): Career federal employees terminated without due process can appeal to the MSPB.²³
VII. Pathways to Reinstatement
Federal employees and political appointees terminated during the COVID-19 pandemic have several legal arguments for reinstatement:
- Improper Termination: If agencies failed to offer reasonable accommodations, FMLA leave, or disability leave, terminations could be challenged as improper under federal law.²⁴
- Statutory Violations: Terminations that disregarded pandemic labor protections may warrant remedies, including reinstatement or compensation.²⁵
- Contextual Arguments for Appointees: Trump appointees terminated during the pandemic could argue that the severity of the crisis justified extended job protections, particularly given the government’s duty to maintain stability and support employees during a declared national disaster.²⁶
Conclusion
The termination of federal employees during the COVID-19 pandemic raises significant legal and ethical concerns. While COVID-19 remains a public health concern, the official public health emergency in the U.S. ended on May 11, 2023. President Trump may have a whole extra strategy beyond recess appointments for many employees as he can bring back the people he likes and set up a COVID reinstatement team to get everyone he wants back into the system.
In conclusion, the unprecedented circumstances of the COVID-19 pandemic led to the termination of many federal employees, including political appointees, raising significant legal concerns regarding their rights under labor laws and pandemic-related statutes. Notably, the legal precedent established by cases such as Spicer v. Biden has left open the possibility for former Trump appointees, who were fired during the pandemic or while affected by COVID-19, to be restored to their federal positions without the usual oversight, investigations, or Senate review. This presents an opportunity for President Trump to reinstate these individuals, potentially with back pay, bypassing typical procedural hurdles. This situation highlights the complexities of pandemic-related employment decisions and the broader implications for federal appointments during times of national emergency.
Violations of the FMLA, ADA, and other labor laws, coupled with the failure to notify employees of their rights to disability leave or accommodations, may render all of these dismissals unlawful. For political appointees under the Trump administration, the argument for appointment-restoration is bolstered by the extraordinary circumstances of the pandemic and the heightened obligations imposed on federal agencies by national emergency declarations. Addressing these issues is critical to upholding fairness and accountability in government employment practices and if Trump does not want to allow anyone to serve out their tenure or return, he can fire them on day one.
_______________
Commissioner George Mentz JD MBA CILS CWM® is the first in the USA to rank as a Top 50 Influencer & Thought Leader in: Management, PM, HR, FinTech, Wealth Management, and B2B according to Onalytica.com and Thinkers360.com. George Mentz JD MBA CILS is a CWM Chartered Wealth Manager ®, global speaker - educator, tax-economist, international lawyer and CEO of the GAFM Global Academy of Finance & Management ®. The GAFM is a EU accredited graduate body that trains and certifies professionals in 150+ nations under standards of the: US Dept of Education, ACBSP, ISO 21001, ISO 991, ISO 29993, QAHE, ECLBS, and ISO 29990 standards. Mentz is also an award-winning author and award winning graduate law professor of wealth management of one of the top 30 ranked law schools in the USA.Mentzenborg is just a term of art to describe the theory and process by George Mentz JD MBA ChE. CWM is for Chartered Wealth Manager ® and ChE Chartered Economist ® is a credential for economics professionals.
Endnotes
- National Emergencies Act, March 13, 2020.
- Stafford Act Disaster Declarations, FEMA.
- CDC Guidelines on Workplace Safety, 2020.
- OSHA Pandemic Standards, 2020.
- Family and Medical Leave Act, U.S. Department of Labor.
- EEOC Guidance on COVID-19 and Disabilities, July 2021.
- ADA and Rehabilitation Act Overview, U.S. DOJ.
- Whistleblower Protection Act, 2020.
- Pandemic and Disaster Labor Rights, U.S. Department of Labor.
- Long COVID and Disability Classification, EEOC.
- Occupational Safety and Health Act.
- Federal Whistleblower Statutes.
- Disaster Relief Employment Rights, Stafford Act.
- Merit Systems Protection Board Appeals Guide.
- FMLA FAQ on COVID-19, U.S. Department of Labor.
- Pandemic Workforce Accommodations, OSHA.
- Federal Employee Disability Accommodations, EEOC.
- Civil Rights Act of 1964 Protections in Employment.
- Political Appointee Labor Rights, Federal Register.
- Historical Analysis of Presidential Appointee Dismissals, Congressional Research Service.