Since the beginning of the coronavirus pandemic in March 2020, one of the most common questions I’ve been asked as a Pennsylvania employment lawyer is whether a business can legally fire an employee for missing work due to COVID-19 or symptoms of COVID-19. This issue has not been decided by Pennsylvania appellate courts. However, a few state and federal trial courts have held that a business cannot legally fire an employee who missed work because they were infected with, or showed symptoms of, COVID-19.
In Pennsylvania, employment is generally considered “at will.” That means that, subject to certain exceptions, your employer can fire you, and you can quit, at any time and for any reason or no reason at all.
But in Pennsylvania, there is an important exception to this rule called the “public policy” exception. Under this exception, even at-will employees cannot be fired “at will” if their firing would violate a clear mandate of public policy.
What does this mean?
There are certain policies behind every law. Think of the “policy” as the goal of a law and the written law itself as the means towards achieving that goal. For example, the policy behind the Pennsylvania Worker’s Compensation Act is to allow employees a means of being compensated for the wage loss and medical bills associated with an on-the-job injury. If, for example, a company could fire an employee for filing a worker’s compensation claim, then future employees would be deterred from filing worker’s compensation claims out of fear of being fired. In this circumstance, the end goal of law — the “policy” behind it — would be thwarted. That is why Pennsylvania courts have ruled that even “at-will” employees cannot be fired merely for filing a worker’s compensation claim. If they are fired, they can sue their employer for “wrongful discharge in violation of public policy.”
Pennsylvania courts have also held that an employer cannot fire an employee for refusing to violate the law or for fulfilling a legal duty. This would also be a violation of “public policy.” For example, your employer cannot fire you for missing work to appear for jury duty or for refusing to engage in fraud.
As a general rule, the relevant “public policy” must have some foundation in Pennsylvania law or the Pennsylvania constitution. However, under certain circumstances, courts are empowered to declare the existence of a public policy when that policy that so greatly affects the public health, safety, or welfare that there is virtually unanimity with regard to it.
It was on this last rule that I was able to overcome a motion to dismiss in a recent case I handled in the Lehigh County Court of Common Pleas. In that case, I represented an at-will employee who was fired from his former employer for missing work with symptoms of COVID-19. To make matters worse, my client was instructed to stay home by his supervisor and missed 5 days of work with the full knowledge of his employer. When he attempted to return to work a week later, his employer fired him for missing work the previous week without an excuse.
So we sued, alleging that my client’s former employer fired him in violation of public policy. The relevant public policy, we argued, was simple and widely accepted: if you’re sick, stay home. At the time (April 2020), that was the single, unified message of every elected official and policymaker at every level of the state and federal government. And it was a policy that so greatly affected the public health, that virtually everyone agreed with it.
And the court agreed with us. When the employer tried to get the lawsuit dismissed, the court rejected them and ruled that the case was allowed to go forward. It settled shortly thereafter.
Recently, another COVID-related case in the U.S. District Court for the Eastern District of Pennsylvania was also permitted to go forward. In that case, the plaintiffs, who were admittedly “at-will” employees, alleged that their employer fired them, in part, because they complained about the employer’s lack of safety protocols and COVID-19 mitigation efforts. When the employer tried to get the case dismissed, the court ruled that what the plaintiffs alleged could amount to a violation of public policy, namely the policy of ensuring that businesses enact reasonable safety measures to protect their employees and customers from COVID-19.
To date, no Pennsylvania appellate court has decided whether an employee can be fired for missing work with COVID-19 symptoms or for complaining about his or her employer’s lack of safety protocols. That means that there is no uniform rule in Pennsylvania regarding these issues. Instead, these cases are currently being decided at the trial and county court levels. While a trial court decision from one county can be considered persuasive by other trial court judges in other counties, those decisions are not binding on those other judges. In other words, trial court judges are not obligated to follow the decision of other trial court judges. The trend, however, has been uniform at the trial court level — an employer cannot fire an at-will employee for missing work with COVID-19 symptoms or for complaining about the employer’s lack of safety measures.
Given the slow nature of litigation and the backlog of cases in courts throughout the state, the COVID-19 pandemic is more likely to end before the Pennsylvania appellate courts ever get to decide these issues.
If you’ve been fired for missing work with COVID-19 symptoms or for complaining about your employer’s lack of safety measures, give Mansour Law a call or CONTACT US online to see how we can help.