What Do You Think: Did Terminating Worker for COVID-19 Reports Violate Public Policy?

Harrisburg, PA (WorkersCompensation.com) – Against the backdrop of the worst pandemic that most anyone living has experienced, terminating an employee for reporting potential coronavirus-spreading practices in the workplace could arguably violate public policy.

However, as a federal court recently discovered, when a state legislature hasn’t weighed in on COVID-19 in the workplace, it might prove difficult for an employee to establish that his termination went against established law.

A loader for a food company began experiencing COVID-19 symptoms and was advised by his doctor to self-quarantine pending the results of a COVID-19 test. The loader also notified the company of his potential diagnosis, and his supervisors directed him to not report to work until he had test results.

While waiting for his results, the loader used a state reporting form online to raise allegations against the company for:

  • Not adequately sanitizing the facility.
  • Not enforcing social distancing among employees.
  • Not notifying employees when they came in contact with a coworker who had COVID-19.

At the time, Pennsylvania was under an executive order prohibiting all non-life sustaining businesses from operating. However, as a food supplier, the company was permitted to remain open and required to follow coronavirus-mitigation efforts, such as social distancing.

After receiving a negative COVID-19 test result, the loader attempted to return to work but was terminated and allegedly escorted off the premises.

The loader sued the company, arguing that the company terminated him in retaliation for complaining to the state about potential coronavirus-spreading conditions at the facility.

In Pennsylvania, the presumption for all non-contractual employment relations is that a job is at-will employment, and an employee can be terminated at any time. However, an exception to this rule involves terminations that violate a “clear mandate of public policy.”

Pennsylvania courts have recognized the public policy exception in cases where the employer: 1) compels the employee to engage in criminal activity; 2) prevents the employee from complying with a duty imposed by statute; or 3) discharges the employee when a statute prohibits the termination.

Did the loader’s termination violate public policy?

  1. Yes. The company’s action against the loader implicated public policy due to the executive order that sought to mitigate the spread of COVID-19.
  2. No. The company didn’t ask the loader to violate a statute or compel him to commit a crime.

If you chose B, you agreed with the court in Warner v. United Natural Foods Inc., No. 1:20-cv-1758 (M.D. Pa. 01/13/21). According to the court, an executive order issued “to respond to a crisis, is usually temporary, and does not undergo the same rigorous enactment process as a statute or administrative regulation.”

While the court expressed sympathy toward the loader’s actions, it also reasoned that precedent required the court to determine whether the company’s conduct implicated public policy by reference to the state constitution, judicial precent, or laws enacted by the state legislature.

“We see no clear pronouncement of public policy regarding an employer’s responsibilities during the COVID-19 crisis in any of those sources,” the court explained. “We are hesitant to pronounce that an employment decision potentially inconsistent with an executive branch’s COVID-19 mitigation efforts clearly violates public policy where there is no affirmative indication that the legislature would agree.”

As a result, the court dismissed the case.

This feature does not provide legal advice.

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