One of the first employment lawsuits related to COVID-19 was filed in Iowa last week.  A former Dallas County Jail employee alleges he was fired because he called a Department of Corrections “hotline” to report concerns about working with a colleague infected with the virus.   Jail employees were informed one of their co-employees tested positive for COVID.   But the infected employee was not symptomatic and would be allowed to work with precautions.   After the plaintiff’s call to the hotline, employees were notified the infected employee would not be returning to work after all.

The plaintiff claims the Sheriff became angry when he learned about the call to the hotline, accusing the plaintiff of disloyalty and going outside the chain of command.  Plaintiff alleges he was suspended and ultimately fired.   The Sheriff’s stated reason for the termination was a violation of the “no call-no show” policy.

The lawsuit alleges a violation of Iowa’s public sector whistleblower law, and wrongful discharge in violation of public policy.    It is the public policy claim, depending upon how the court treats it, that could have the most impact on COVID related employment litigation.   The whistleblower statute applies only to public sector employees and is fairly narrow in its application, and thus is not as significant.

Wrongful discharge in violation of public policy is a common law claim that is supposed to be a “narrow” exception to the general rule of at-will employment.    To prevail on a public policy claim, the plaintiff must prove he was fired for engaging in activity protected by “public policy.”    Unfortunately for employers, what constitutes protected public policy activity is somewhat amorphous and has been growing ever since the Iowa Supreme Court recognized this cause of action in 1988.  Generally, to be protected, the employee must be exercising a right guaranteed by law (e.g., a workers’ compensation claim), fulfilling a legal requirement (e.g., jury duty), or exercising a professional obligation required by law or regulation (e.g., teacher reporting suspected child abuse).

Based upon current law, it is doubtful this plaintiff’s call to the Department of Corrections hotline qualifies as activity protected by public policy.    There is no allegation the Dallas County Jail was violating any rules, regulations, or guidelines concerning its COVID mitigation efforts or the presence of a COVID-19 employee in the workplace.   There is no allegation the workplace was unsafe.   There is no allegation the plaintiff or a member of his household was susceptible to severe illness if he contracted COVID-19.     The plaintiff alleged he called because he feared the infected co-worker would create a health hazard for jail employees and inmates.

It may have been unwise for the Dallas County jail to allow a COVID infected employee to work.   The plaintiff’s fear of COVID-19 spread may have been reasonable.  The presence of a hotline to report concerns to the Department of Corrections may be a good idea.  But, does public policy extend employment protection to an employee’s expression of complaint or concern about working with a colleague who is sick with an infectious virus, even one like COVID-19?    If this plaintiff’s activity is protected by public policy, it will open the door to legal protection of all manner of employee expression of complaint or concern.

By the time this question reaches the Iowa Supreme Court, the COVID-19 pandemic will be long gone (hopefully).   Until then, this lawsuit against the Dallas County Sheriff may be the first of a deluge of lawsuits claiming a wrongful employment action connected to COVID.