Jack W. Schulz of Schulz Gotham, PLC, in Detroit focuses his practice on employment litigation, representing labor unions, and representing truck drivers. He offers his input on some current litigation arising out of COVID-19, as well as his predictions as to issues that will be litigated going forward.
I know you’re involved in current litigation involving an employee’s alleged wrongful termination for attempting to comply with the governor’s “Stay Home, Stay Safe” orders—can you talk a little bit about the issues at play in that case?
Generally, Michigan is an "at-will" employment state, meaning that an employee can be terminated for any reason or no reason at all. One exception to at-will is wrongful termination in violation of public policy. The idea is that an employee should not be terminated for refusing to break the law. Here, the executive orders of the governor are enforceable law. The governor unambiguously instructed Michiganders that if work can be performed through telecommuting, it must be performed that way to minimize face-to-face human contact. Ms. Gorby was tasked with ordering generic merchandise for Hometown Pharmacy's various locations—an office job. She did not have any interaction with customers. All of her essential duties could be and have been performed remotely. Despite the executive order, the company's president instructed his staff that it was business as usual, and no employees were allowed to telecommute. Ms. Gorby voiced her concerns that his instructions were in violation of the executive order and that it would be against the law to follow them. She was fired hours later. Ms. Gorby had been working there for over 16 years without discipline. She filed her claim in the Newaygo County Circuit Court.
Ms. Gorby has also filed a claim of retaliation with the Michigan Occupational Safety and Health Administration (MIOSHA). The argument is that she was terminated for speaking out about health and safety concerns. MIOSHA has sole jurisdiction over these claims.
What are some of the biggest challenges facing a lawyer who wants to bring a claim for retaliatory discharge in violation of public policy on behalf of an employee during the COVID-19 emergency?
The largest difficulties thus far have been procedural. Numerous Michigan counties do not use online filing. Further, in-person options are on hold. So in order to file pleadings I need to assemble and mail a large packet, including several copies of the complaint, proposed summons, and filing fees. The packet must also include a return envelope so that copies of the filed documents can be sent back to me. The whole process is very slow. There are similar difficulties with process service as people aren't allowed to meet face-to-face.
What are some of the other issues you’re seeing the most in your practice right now as a result of COVID-19?
The largest volume of calls I am receiving fall into two categories. First, the unemployment system in Michigan is completely overloaded. I have spoken with out-of-work employees who have called the system hundreds of times and can't get through. Several qualify but have a simple error in the records, such as the info being sent to an old address or tied to an outdated job. Sadly, a lot of employers are also actively fighting qualified discharged employees’ unemployment. For instance, I represent an individual who was terminated after being instructed to leave the work site after showing symptoms of COVID-19. He immediately went to the emergency room, was prescribed medicine, and taken off work for three days. He sought to be tested for COVID-19 but was not rationed a test. He notified his employer immediately and was terminated allegedly for attendance and walking off the job. By all arguments he qualifies for unemployment, but his employer is challenging it and has even used it as leverage offering to dismiss its challenge if we dismiss our legal suit. In the meantime, he is struggling to buy necessities.
The second category involves people who aren't sure whether they are actually an "essential employee" under the law. The state has offered some guidance for making a determination. Regardless, there is still a lot of gray area.
What advice do you have for attorneys representing employees during this time?
Now is your time to shine. We're comparatively fortunate as most of us can pay our bills. Please donate your time and spend some time on the phone talking employees through this confusion. Most of the advice and problems cannot be reduced to a lawsuit; one of the best things we can do is help put truly scared individuals at ease. It is emotionally tolling, but be strong. Our work is more important than ever. Likewise, be patient and understanding with some of the tough decisions and frustration clients are having. These are not normal times. Folks are panicked about the uncertainty of providing for their families.
What other litigation trends do you foresee emerging in the employment area, and how can attorneys prepare?
I am very curious how the courts will handle several situations that have arisen from this pandemic. There are situations in which an employer has learned that an employee has tested positive for COVID-19 and not notified other employees timely. What are the implications if numerous employees catch it as a result? What are the potential HIPAA concerns of notifying other employees when it is obvious who the individual is? Likewise, I am curious as to whether having and recovering from COVID-19 can be considered a perceived disability. I've spoken with at least one individual who was told he is not allowed to return to work even though he has recovered and enough time has passed.