Can you fire an employee for complaining that the company violated state/local COVID-19 orders?

Often, readers of the blog will email me recent blogworthy HR news.

Occasionally, an attorney will send me a favorable decision that s/he obtained for a client on an employment law topic that may interest readers of this blog. Today, that’s what I’ve got for you — a case involving some healthcare workers who claimed that their former employer fired them for complaining that the company was not following state and local COVID-19 mandates.

But can’t employees be fired for basically anything?

In 49 out of 50 states — not Montana — at-will employment is the default rule. In plain English, either the employee or employer can end the employment relationship at any time, for any reason, with or without notice.

Now, obviously, there are some exceptions to the at-will employment rule. For example, a company can’t fire an employee because of the color of her skin (race discrimination), or because he took job-protected medical leave (FMLA), or because a group of employees complains about age discrimination (retaliation).

The public policy exception.

Some states take it a step further. That is, in a state like Pennsylvania — technically, it’s a Commonwealth — there are common law “public policy” exceptions to the at-will employment doctrine. Pennsylvania courts have ruled that you can’t fire someone for refusing to take a polygraph, attending jury duty, or refusing to engage in illegal activity.

But, how about firing employees for complaining that their employer is not following state or local COVID-19 protocols? Obviously, that’s an issue of first impression. But, in this recent decision, a Pennsylvania federal judge concluded that “[t]he current global pandemic poses a serious public health concern and, combined with potential violations of medical ethical rules and practice protocols, is sufficient to allege a wrongful discharge claim…” Consequently, it denied the defendant’s motion to dismiss the plaintiffs’ claim.

Shout out to the attorney who connected with me on LinkedIn and shared this decision. Good luck with the case!

For the rest of you, I’ve said it before: whistleblower claims in the age of COVID-19 are no joke. But, now you can add wrongful discharge claims to the list.