Appellate Division recognizes whistleblower claim in COVID-19 health dispute

The Appellate Division has held that an employee may bring a private-employer whistleblower claim under state law where he was fired after complaining that his boss's son had entered the workplace during the early COVID-19 period without a mask or any social distancing. 

The case is Lawlor v. Wymbs, Inc, issued on January 10. I briefed and argued the appeal. 

Under Labor Law 740, the whistleblower law, you cannot get fired for objecting to management about a specific threat to public health and safety. Under the statute that was in effect at the time, "[a]n employer shall not take any retaliatory personnel action against an employee because such employee . . . discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation" and that "creates and presents a substantial and specific danger to the public health or safety." The statute also prohibits retaliation where the employee "objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation." 

At the height of the COVID-19 crisis, Lawlor was fired after he complained to his boss, that a non-employee was repeatedly entering the workplace without taking precautions to prevent the spread of COVID-19. This individual, the boss's son, was neither wearing a mask nor socially-distancing, just as the virus was filling up hospitals with sick patients and causing an unfathomable number of deaths. The  son thus placed at risk everyone who worked in the building, as well as their families, neighbors, and others in the community. Rather than take Plaintiff's concerns seriously, the boss fired Plaintiff, telling him, "fuck you" and "this pissed me off to no end."

Does Plaintiff have a case? Supreme Court said he does, and the Appellate Division affirms. The employer argued that Plaintiff cannot win because he did not object to the violation of any laws or regulations, and that the Governor's Executive Orders that took effect in early 2020 to deal with the COVID-19 crisis don't count since they were not statutes or regulations. The Appellate Division disagrees, stating, "the allegations that plaintiff was terminated after complaining in June 2020 about his employer’s practice of permitting a nonemployee to enter the workplace without wearing a mask or socially distancing support plaintiff’s claim that defendant 'violated various laws, rules or regulations' targeting COVID-19 safety precautions in the workplace, including Executive Order 202.8 and related executive action." 

The employer also argued that Plaintiff did not raise an objection to anything that would create a substantial and specific danger to public health. The Appellate Division, which is still requiring lawyers to wear masks in the courtroom, disagrees, stating, "It is hardly 'mere speculation' (Villarin v Rabbi Haskel Lookstein School, 96 AD3d 1, 7 [1st Dept 2012]) that, early in the COVID-19 pandemic and before vaccines were available, permitting indoor congregation without masks and without practicing social distancing would have exposed defendant’s employees (as well as their families and anyone else with whom they came in contact) to infection by a highly contagious and deadly virus."