May 14, 2021

Volume XI, Number 134

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Governor’s COVID-19 Orders Are Not Public Policy, Pennsylvania Federal Court Says

In January, a federal judge found that the Pennsylvania governor’s COVID-19 related executive orders do not constitute public policy, and that terminating an employee after reporting violations of those orders is not wrongful. This decision is an early indicator that a current strategy of the plaintiffs’ bar in elevating COVID-19 public health orders to support wrongful discharge claims may not gain universal acceptance in the courts. 

In Warner v. United Natural Foods, Inc., the plaintiff alleged that while quarantining after experiencing symptoms of COVID-19, at the direction of his supervisors, he reported his employer to the Department of Health. The plaintiff complained to the Department of Health that the company did not adequately adhere to COVID-19 orders issued by the governor. The plaintiff alleges that after he received a negative test result and attempted to return to work, his employment was terminated. 

He then brought a lawsuit for wrongful termination in violation of public policy, based on two separate theories: first, that his employer retaliated against him for making a complaint to the Department of Health, and alternatively, that his employer impermissibly terminated his employment for missing work pending the results of his COVID-19 test. After the defendant removed the case to the United States District Court for the Middle District of Pennsylvania, the court granted the defendant’s motion to dismiss. The court held that the plaintiff failed to satisfy legal requirements for maintaining a claim that the defendant terminated his employment in violation of public policy. 

The court reasoned that public policy in Pennsylvania is determined by reference to judicial decisions by the Pennsylvania courts, the Pennsylvania Constitution, and statutes enacted by the Pennsylvania legislature. The court found that the COVID-19 executive orders did not fall within these categories and did not undergo the same rigorous enactment process as a statute or administrative regulation. The court stated that while it did not condone the defendant’s alleged conduct, “public policy of the Commonwealth of Pennsylvania cannot be based on the whims of an individual judge or the allegations of an aggrieved employee.” The court held that because the plaintiff had not identified any public policy that was allegedly violated, he could not state a claim for wrongful termination in violation of public policy.

While this is a win for employers in Pennsylvania, it is important to note that some states have whistleblower protection laws that may provide greater latitude to employees making similar claims against their employers. 

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© 2021 BARNES & THORNBURG LLPNational Law Review, Volume XI, Number 42
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Caroline represents employers in a range of actions involving harassment, retaliation, discrimination, wrongful termination, and wage and hour claims, including class actions.

Beyond litigation and agency representation, Caroline counsels senior management on day-to-day human resources and employee relations issues, including wage and hour compliance, disciplinary and performance counseling, reasonable accommodation, termination decisions, internal complaints and investigations, and employee classifications. She also assists with reviews and updates to company handbooks, policies...

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Leveraging deep experience as outside and in-house counsel, Christina M. “Tina” Janice is passionate about partnering with employers throughout the United States to help them thrive. A skilled employment law litigator and counselor, she helps clients navigate the challenges of growing and managing their workforce.

With a unique practice spanning nearly 30 years as a career litigator, trial lawyer and former head of litigation for a multinational S&P 500 company, Tina is sought out by major corporations and local business owners for providing sophisticated representation to...

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Mark Wallin, Attorney, BT, Chicago, Labor Employment
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In order to provide the best counsel, Mark Wallin believes it is his role to understand his clients’ business needs so he can help them determine what resolution will provide the most benefit. His keen ability to understand his clients’ practical concerns allows him to advise on the best path to successfully resolve issues – whether through traditional litigation or negotiated resolution.

In the course of his practice, Mark has focused on providing the highest-level of service to his clients and building long-term relationships. Specifically, he defends employers in a wide range of...

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