Pennsylvania’s Common Law Wrongful Termination in Violation of Public Policy Tort May Protect Whistleblower Employees Regarding COVID-19 Safety Policies
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Pennsylvania’s Common Law Wrongful Termination in Violation of Public Policy Tort May Protect Whistleblower Employees Regarding COVID-19 Safety Policies

Key Takeaways

  • The U.S. District Court for the Eastern District of Pennsylvania has allowed a group of plaintiffs to proceed with a lawsuit alleging they were wrongfully terminated for complaining that their employer violated state and local COVID-19 orders

  • Employees who complain to an employer about the employer’s violations of COVID-19 orders may be protected by Pennsylvania’s common law tort for wrongful termination in violation of public policy

  • Employers should be careful not to retaliate against employees who make complaints that the employer has not implemented adequate policies to avoid the spread of COVID-19 in the workplace

 

On January 8, 2021, the U.S. District Court for the Eastern District of Pennsylvania, in Allen v. Northeast Treatment Centers, Inc., C.A. No. 2:20-cv-05519-MAK, ruled that three plaintiffs—all nurses formerly employed by the defendant—could proceed with a lawsuit alleging that they were wrongfully terminated for complaining that the company violated state and local COVID-19 orders. The plaintiffs alleged that their termination violated Pennsylvania’s clear mandates of public policy. This lawsuit is one of the first, if not the first, to address the applicability of Pennsylvania’s common law wrongful discharge in violation of public policy tort to COVID-19-related employee complaints.

Under Pennsylvania law, a plaintiff may bring a common law wrongful discharge claim where the termination of an at-will employee would threaten clear mandates of public policy. “Public policy” extends beyond legislative enactments and includes policies that are “so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it.” Courts are typically reluctant to extend this tort. In Allen, the court concluded that the serious public health concern posed by COVID-19, combined with potential violations of medical ethical rules and practice protocols concerning denying care to patients, is sufficient to allege a wrongful discharge claim at this early stage.

While this opinion suggests that employees who complain to employers about the employer’s violation of state or local COVID-19 orders may be afforded employment protections, it leaves a lot of uncertainty. For one, the court seemingly combined complaints about violations of COVID-19 orders with unrelated public policy concerns to conclude that the plaintiffs’ allegations were sufficient to allege a public policy that was violated by their terminations. Further, the opinion focused on violations of COVID-19 orders, not potentially inadequate safety precautions that do not violate any state or local order.

Given this uncertainty, employers should take care to follow all COVID-19 orders related to workplace policies closely, implement appropriate policies to keep their employees safe (such as mandating PPE and social distancing, and permitting employees to work from home entirely or on a staggered schedule), and not retaliate against employees who complain that they do not feel safe in the workplace due to COVID-19.

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