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No wrongful discharge claim for employee who reported food distributor employer’s lack of COVID-19 protections

By Wayne D. Garris Jr., J.D.

The court also dismissed the employee’s claim that he was terminated for self-quarantining while he waited for his COVID-19 test results.

Granting United Natural Foods’ motion to dismiss, a federal district court in Pennsylvania held that a loader for the company was not wrongfully terminated in violation of public policy. After the Governor issued an order requiring businesses remaining open during the COVID-19 pandemic to take mitigation efforts, the employee reported the employer to the health department for noncompliance when he came down with COVID-19 symptoms. He was fired shortly thereafter. The court expressed displeasure with the employer’s action, but ultimately held that, under Pennsylvania law, an executive order is insufficient to implicate a public policy especially when the legislature has not indicated its agreement (Warner v. United Natural Foods, Inc., January 12, 2021, Jones, J., III).

State of emergency. The employee worked as a loader at the employer’s wholesale food distribution operation in York, Pennsylvania. In March 2020, the governor issued an executive order prohibiting all non-life-sustaining businesses from operating due to the COVID-19 pandemic. The state health department issued a subsequent order requiring businesses that remained open to comply with mitigation efforts, such as social distancing protocols. The employer qualified as an essential business and remained open.

In early May, the employee began experiencing COVID-19 symptoms. His doctor advised him to self-quarantine while he waited for his COVID-19 test results. The employee notified two supervisors at work about his situation and the supervisors directed him to self-quarantine and not report to work until he received the test result.

Health department compliant. Around the same time, the employee reported the employer to the state’s health department for what he believed to be a violations of the order requiring mitigation. Specifically, the employee accused the employer of not sanitizing the York County facility, not enforcing social distancing, and not notifying its employees when they came in contact with a coworker who had contracted COVID-19.

Termination. On or around May 20, the HR director called the employee and asked, in an allegedly hostile manner, why he believed the employer had not been adequately sanitizing the facility. The next day, the employee received a negative result from his COVID-19 test. On May 27, he returned to work. However, the HR director told him that he was soon going to be terminated. When the employee asked for more information, he was allegedly ignored and escorted off the premises.

Lawsuit. The employee filed suit against the employer for wrongful termination in violation of public policy. He put forth two theories in support of his wrongful termination claim. First, he argued he was wrongfully terminated in retaliation for his complaint to the health department. Second, he alleged that he was wrongfully terminated because he missed work pending the result of his COVID-19 test. The employer moved to dismiss.

Public policy exception. Pennsylvania courts recognize the public policy exception to the at will employment doctrine 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 expressly prohibits such termination.”

The employer argued that the employee’s claim should be dismissed because executive orders “are not sources from which clear pronouncements of public policy can derive.” Further, the employer argued, even if either executive order could constitute sources of public policy, the employee failed to allege that the employer asked him to commit a crime, prevented him from complying from a statutorily imposed duty, or terminated his employment in violation of any statutory prohibition.

Is a public policy implicated? The court explained that the Supreme Court of Pennsylvania instructed courts to determine whether an employer’s conduct implicates public policy “by reference to the state constitution, Pennsylvania judicial precedent, and statutes promulgated by the Pennsylvania Legislature.” Here, the employee did not identify, nor could the court find, a “clear pronouncement” of public policy regarding an employer’s duties during the pandemic in any of the sources identified by the state high court. Additionally, there was no case law to support the employee’s contention that an executive order is an articulation of the state’s public policy.

The court stated its sympathy for the employee’s position, but explained that as a federal court sitting in diversity jurisdiction, it was required to follow the instructions of the Pennsylvania Supreme Court—the public policy exception should only apply in “the most limited of circumstances where the termination implicates a clear mandate of public policy in this Commonwealth.” The court declined to find that a public policy was implicated based on an executive order when “there is no affirmative indication that the legislature would agree.”

No wrongful termination. Even if it had found that a public policy was implicated, the employer was still entitled to dismissal. The employee failed to plausibly allege that the employer compelled him to engage in criminal activity, prevented him from complying with a statutory duty, or discharged him in violation of a statute.

First, the employee claimed that he was wrongfully terminated because of his complaint to the health department. The court noted that the employee was not under any affirmative duty to report violations of the executive order. Pennsylvania courts have consistently dismissed wrongful termination claims in which a plaintiff has claimed retaliation for reporting conduct for which no duty to report existed.

Next, the court rejected the employee’s claim that he was fired for self-quarantining. The employee argued that the Secretary of Health’s order instructed symptomatic employees to “notify their supervisor and stay home,” and that because violations of the Pennsylvania Disease Prevention and Control Law could potentially result in a fine or jail sentence, the employer terminated him for refusing to violate that statue. The court was not persuaded.

First, the executive order merely encouraged employees to self-quarantine and included no mention of criminal penalties against individual employees. Next, there was no indication that the employee’s potential violation of the executive order would constitute a violation of the Disease Prevention and Control Law. Lastly, the employee acknowledged that two supervisors directed him to self-quarantine. The court found it “implausible” that the employer instructed him stay home until he received his test results, then fired him for complying with the employer’s directive. Thus, the court granted the employer’s motion.