Today we filed suit against Enlivant, a Chicago company who owns and operates an assisted living facility in Greenbrier County, West Virginia operating as Seasons Place Assisted Living. On June 1, 2021 they terminated my client, Stephanie McCutcheon, for refusing to take an unapproved non-mandatory vaccine for COVID-19.
This is the letter Stephanie received from the Human Resources Director in Chicago after complaining about the company’s verbal vaccine mandate. As you can see, knowing it was a violation of federal law to mandate the vaccine, they attempted to frame her termination as a resignation.
Given that it appears to be a form letter, they have apparently done this to other employees. They have assisted living facilities in numerous states.
Our legal theory is a state-law based claim of retaliatory discharge. Basically, as everyone knows, West Virginia is an at-will employment state. However, there was an exception created in Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978), which provides that:
The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer’s motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge.
The State Supreme Court has defined the areas from which “public policy” may derive:
“The sources determinative of public policy are, among others, our federal and state constitutions, our public statutes, our judicial decisions, the applicable principles of the common law, the acknowledged prevailing concepts of the federal and state governments relating to and affecting the safety, health, morals and general welfare of the people for whom government—with us—is factually established.”
See Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 772 S.E.2d 350 (W. Va. 2015)
So federal laws and regulations may form the basis of “public policy.” Now whether that public policy is “substantial” depends on whether it’s “widely regarded as to be evident to employers.” No doubt that requirement is met in this case. A quick google search will reveal an enormous amount of discussion and advice regarding the legality of employers mandating the vaccine. But we shall see….
Here’s the lawsuit, in full, which lays out the facts and law pertaining to the COVID-19 vaccines at the current time:
Here are the exhibits, including the EUA letter to Pfizer:
We are asking for an expedited hearing for a preliminary injunction enjoining Enlivant from terminating employees for choosing not to take a non-mandatory, unapproved vaccine, and directing that my client be re-hired, as well as a declaration that a private employer may not terminate or take adverse action against employees for choosing not to take the COVID vaccine. We are also seeking money damages, punitive damages and attorney fees.
Media Reports:
I have a similar mask mandate issue in Michigan. My employer at the time, Meijer, required employees to wear masks. I have been diagnosed with lung disease (COPD if I ever smoked). This condition severely limits my ability to breath normally. The company was made aware of this and I was sent home from work for failing to comply by wearing a mask. I had been drawing unemployment from this employer, but now, I am finding out that December of 2020, the employer, Meijer, is challenging my benefits on the grounds of misconduct. In other words, my time away because I cannot wear a mask has been deemed unexcused absence.