Last week, the Ohio Court of Appeals affirmed the Civil Rule 12(B)(6) dismissal of a wrongful discharge claim where the plaintiff had allegedly been fired for telling an employee to stay off work for 10 days per the CDC’s COVID guidelines and because the employer believed that she would report him to the CDC for requiring the employee to return to work despite a positive COVID test. Dudley v. Siler Excavation Services, LLC, 2023-Ohio-666 (3/6/23). The Court found that the plaintiff failed to cite a sufficiently clear statutory or regulatory source to support her wrongful discharge claim. The Court found that there was no specific OSHA or Ohio standard applying to this situation after the Supreme Court had concluded that concerns with public health (i.e., a virus) were not specific workplace safety risks. The concurring opinion also emphasized that public health recommendations, suggestions and guidance were not binding or legal requirements, like statutes and regulations.
According to the Court’s opinion, the plaintiff was hired
into an HR role. When an employee told
her that he tested positive for COVID, she advised him to stay off work for 10
days per the CDC guidelines at the time.
The defendant’s owner, however, told him to report back to work the
following Monday. When the plaintiff
then told the owner why the employee “’should not come to work, [he] became
upset and told [her] that ‘[i]t's my f---ing company and I'll do what I want.’ [He]
then told [her] that ‘he could not trust her to go to the CDC’ and that she
needed to pack her things and leave.”
She filed suit for wrongful discharge in violation of public
policy. Because she was an at will
employee, the trial court found that she could not sue for wrongful discharge
when she failed to identify a sufficiently clear source of public policy
which the employer had violated by firing her and dismissed her claim. The Court of Appeals affirmed.
Under the common law doctrine of at-will employment, [she] could be fired at the will of [the employer]. "However, if an employee is discharged in contravention of a clear public policy articulated in the Ohio or United States Constitution, federal or state statutes, administrative rules and regulations, or common law, a cause of action for wrongful discharge in violation of public policy may exist as an exception to the general rule."
In order to prove a public policy wrongful discharge claim
the employee must allege (and ultimately prove) a number of things, including “That
clear public policy existed and was manifested in a state or federal
constitution, statute or administrative regulation, or in the common law (known
as the clarity element).” The rule being
violated by the employer must be specific; "[a] general reference to
workplace safety is insufficient to meet the clarity requirement." In other words, “an employee cannot simply
allege that clear public policy exists because of a "general societal
interest," but rather must set forth a specific law evincing public
policy.”
In her complaint, the plaintiff referenced to the OSH Act’s
general hazard clause and the Ohio Department of Health recommendations
that employee quarantine for 10 days. The Court found that these were insufficient
sources of clear public policy or requirements and were more similar
to concerns of general, non-specific workplace safety issues found insufficiently clear in prior cases.
the Court emphasized the "crucial distinction" "between occupational risk and risk more generally." . . . To be enforceable, workplace safety standards must address occupation-specific risks that employees face at work. The risks must be related in a "causal sense" to the workplace and these risks differ from everyday risks that all people face. . . . Thus, a rule addressing the risks posed by COVID-19 is a permissible workplace safety standard under the OSH Act only "[w]here the virus poses a special danger because of the particular features of an employee's job or workplace," such as where the employee is a researcher working with the COVID-19 virus. . . .
{¶22} In contrast, public health measures addressing universal risks, like "crime, air pollution, or any number of communicable diseases" are not occupational hazards. . . . Such threats do not have a causal relationship to the workplace but, instead, are "hazards of daily life." . . . They do not become workplace hazards "simply because most Americans have jobs and face those same risks while on the clock." . . . Because "permitting OSHA to regulate the hazards of daily life" would "significantly expand OSHA's regulatory authority without clear congressional authorization," the U.S. Supreme Court concluded that the vaccine mandate "extend[ed] beyond the agency's legitimate reach." . . .
In light of NFIB, we reject [Plaintiff’s] broad interpretation of state and federal law as applying generally to COVID-19 hazards in the workplace. Notably, [she] does not claim that her employment involved an occupational risk more than can be characterized as a hazard of daily life. "COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather." . . . There is nothing to suggest COVID-19, or any other communicable disease or virus, poses a special danger because of her job or workplace. COVID-19 is simply a hazard of daily life. The mere citation to Pytlinski and Kulch, along with other OSHA provisions and regulations are insufficient to meet the burden of articulating a clear public policy specific to workplace safety in context of COVID-19. As the plaintiff, [she] has the obligation to identify the specific source of law that supports the public policy she relies upon in his claim. . . .
{¶24} In so holding, we find [Plaintiff’s] reliance on recommendations published as "guidance" from the Ohio Department of Health's "Responsible Restart" is an insufficient basis to support a clear public policy for purposes of meeting the clarity requirement. . . .
{¶25} While the guidance provided by the Ohio Department of Health and the CDC may have called for 10 days of isolation from employees with COVID-19, nothing in the guidance cited by [Plaintiff] required businesses to adopt any particular protocol. Rather, the guidance is comprised of "Universal Recommended Best Practices." In efforts to slow the spread of COVID-19, the Ohio Department of Health also stated that employers could choose to require masking, social distancing, and other COVID-19 mitigation measures, such as testing. . . . . In other words, "businesses were and are empowered to make their own choices" with respect to COVID-19 mitigation measures. . . . Nothing that [Plaintiff] cites mandates any COVID-19 response—each workplace is unique and free to respond as deemed appropriate.
. . .
. . .For the reasons listed above, [Plaintiff] has not established that the guidance provided by the CDC or the Ohio Department of Health amounted to a sufficient articulation of public policy. [She] was not terminated for reporting Blake's illness, but upon her disagreement with her employer's COVID-19 response. As a result, we find the federal authorities cited by [Plaintiff], namely 29 U.S.C. § 651, 29 U.S.C. § 654, 29 U.S.C. § 660(c), 29 C.F.R. 1904.35, and 29 C.F.R. 1904.36 do not support her claim for meeting the public policy exception to the employment at-will doctrine.
The plaintiff also cited O.R.C. §§4101.11
and O.R.C. 4101.12 to support her public policy claim. “The first, O.R.C. §4101.11, is titled
"Duty of employer to protect employees and frequenters" and the other
O.R.C. §4101.12 is titled "Duty of employer to furnish safe place of
employment.” Ohio courts have divided
whether these statutes are sufficiently clear sources to support a public
policy claim involving workplace safety. This Court refused to decide the issue “because
the facts in this case do not involve even a questionable occupational safety
hazard or workplace safety issue. As discussed, . . . . "[a] general reference to
workplace safety is insufficient to meet the clarity requirement." Instead,
the Court determined that this situation involved a general health risk, not a specific
workplace safety risk.
For reasons stated above, providing a safe workplace does not mean the elimination of every outside illness that could potentially enter the workplace. . . . Creation of such a broad public policy exception would be unworkable and significantly undercut the doctrine of at-will employment. . . . . As such, any claimed public policy exception must be sufficiently clear and narrowly applied. . . . . [Plaintiff] has failed to identify specific, clear, and applicable statutes, rules or constitutional provisions to support her public policy claim and has, therefore, failed to establish the clarity element.
A concurring opinion emphasized that guidance,
suggestions and recommendations issued by public health authorities are
not equivalent to binding statutes and regulations. Among other things, they have not undergone public
review, debate and comment like statutes and regulations.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
