Will Essential Workers be Able to Recover for Unsafe Workplace Conditions Amidst the COVID-19 Pandemic?
Imagine: you are classified as an essential worker defined by federal and state-level guidelines. Dependent upon the income from that position, you show up to work, day after day, during the COVID-19 pandemic even though much of the world remains at home. Although both your state and the federal government have issued safety guidelines for workplaces to follow during this time, your employer shirks those guidelines. You continue to show up to work, in what you believe to be unsafe workplace conditions, and you file a complaint with your state’s Health Department alleging that your employer is not following mandated health and safety guidelines. And, after filing that complaint, you are terminated from your position. Although that situation may be hard to imagine, such was the case for an employee in Pennsylvania.
Studies have shown that essential workers appear to be much more likely than the average employee to contract COVID-19 in the workplace.[i] However, a recent holding in the Middle District of Pennsylvania may cultivate a legal environment where it may be more difficult for employees to recover from employers for violating COVID-19 protocols.[ii] In Warner v. United Natural Foods, Inc., a plaintiff-employee who worked in a wholesale food distribution plant as a loader sued his employer alleging wrongful termination in violation of public policy for (1) retaliating against him for his filed complaint to the Department of Health asserting that the employer was not complying with COVID-19 safety directives and (2) that he was wrongfully terminated because he missed work pending the result of a COVID-19 test in accordance with state-level executive orders recommending that individuals stay at home if presenting symptoms consistent with COVID-19.[iii] There, the court found that plaintiff-employee could not recover under either theory of liability.[iv]
Pennsylvania generally classifies employment relationships as at-will.[v] However, a general exception exists “when a termination violates a ‘clear mandate of public policy.’”[vi] Like other states, this public policy exception is a narrow one, and the “power of the courts to declare pronouncements of public policy is sharply restricted.”[vii] When determining what constitutes “public policy,” courts look to “judicial decisions , the  constitution, and statutes promulgated by the  legislature.”[viii] The court in Warner held that, although “troubled” by plaintiff-employee’s allegations, he failed to allege an “articulable and recognizable public policy that can premise a wrongful termination claim.”[ix] In Pennsylvania, the only recognized public policy exceptions have been when an 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 expressly prohibits such termination.”[x] Further, the court found that “an executive order alone can[not] articulate  public policy.”[xi] The court reasoned that, although the Pennsylvania governor did issue an executive order following a declaration of a state of emergency that prohibited all non-life sustaining businesses from remaining open and mandating that those that must remain open comply with COVID-19 mitigation efforts, “an executive order, especially one enacted under the Emergency Code to respond to a crisis, is usually temporary, and does not undergo the same rigorous enactment process as a statute or administrative regulation.”[xii]
This recent decision could pave the way for other cases of a similar nature. Since last year, over 2,000 employment lawsuits have been filed relating to the COVID-19 pandemic.[xiii] Those cases range from wrongful discharge, similar to the allegations made in Warner, to cases alleging employment discrimination or retaliation/whistleblower cases.[xiv] Regarding those wrongful discharge cases, should other states follow the strict interpretation of public policy established in traditional common law precedent, it appears that employees like the plaintiff-employee in Warner will not be able to recover for violations of COVID-19 issued safety recommendations. However, during these unprecedented times, it seems counterintuitive to not recognize violations of public policy when employers do not follow implemented safety guidelines, recommendations, or mandates – especially in the midst of the deadly COVID-19 pandemic.[xv]
i See Heather Haddon and Micah Maidenberg, Covid-19 Risk for Workers at Restaurants: Cramped Kitchens, The Wall St. J. (Dec. 25, 2020), www.wsj.com/articles/covid-19-risk-for-workers-at-restaurants-cramped-kitchens-11608892200 (finding that Colorado data shows that restaurant employees are three times more likely than the average employee to be infected by COVID-19 at the workplace); The Associated Press, Essential workers in Philly region were 55% more likely to get COVID-19, study finds, PennLive (Feb. 6, 2021), www.pennlive.com/coronavirus/2021/02/essential-workers-in-philly-region-were-55-more-likely-to-get-covid-19-study-finds.html (recognizing a statistical modeling method study that found a “55% higher risk of COVID-19 infection for workers deemed essential”).
ii See Warner v. United Nat. Foods, Inc., No. 1:20-cv-1758, 2021 WL 120844, at *7 (M.D. Pa. Jan. 13, 2021) (granting an employer’s motion to dismiss upon determining that “neither of [p]laintiff’s theories of liability were plausibly alleged”).
iii Id. at *2. Plaintiff alleged that his employer failed to sanitize the facility, failed to enforce social distancing amongst employees, and failed to notify employees when they came into contact with a coworker who did in fact contract COVID-19. Id. at *1.
v See Weaver v. Harpster, 975 A.2d 555, 562 (Pa. 2009) (noting that “[i]n Pennsylvania, absent a statutory or contractual provision to the contrary, either party [employer or employee] may terminate an employment relationship for any or no reason.”)
[x] Id. at *3.
[xii] Id. at *1, *5.
xv COVID Data Tracker, Centers for Disease Control and Prevention (last visited Mar. 21, 2021) covid.cdc.gov/covid-data-tracker/#cases_totaldeaths. As of March 21, 2021, more than 535,000 individuals have died from COVID-19.