Litigation over employment issues relating to the COVID-19 pandemic is finally reaching the trial and appellate courts. This week, the Tenth Circuit Court of Appeals affirmed dismissal of a lawsuit from a warehouse manager fired for undermining the employer’s mask mandate. The warehouse manager claimed that the termination was a pretext for retaliating against him due to his whistleblower status.

In Holt v. Foot Locker Retail Inc., after repeatedly ignoring the company’s mask mandate, the plaintiff started wearing a mask, but posted messages to Facebook disparaging the requirement. He was terminated for these comments, but claimed that the company’s actual motivation involved his reporting inventory irregularities, therefore constituting wrongful discharge under Kansas law. The termination occurred in 2020.

The Tenth Circuit appeared to have little difficulty in rejecting this theory. Like many states, Kansas recognizes a common law exception to its employment at-will doctrine for terminations that violate state public policy. In this case, the court found that reporting inventory issues failed to raise a recognized public policy concern, especially given that the irregularities did not appear to be related to one another.

Many plaintiffs continue to raise creative arguments to oppose employment actions taken based on their rejection of masking, vaccination, or other COVID-19 preventative measures. Most courts have rejected these claims, holding that employers had the discretion to implement measures based on medical and business information known to them at that point in the pandemic.

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