No Negligence in Maskless Temperature Check

Darrell VanDeusen
Darrell VanDeusen

Not a day goes by for me without inquiries from clients about dealing with vaccine mandates, employee exemptions, government executive orders, testing protocols, and discipline for those employees who fail to follow the rules.   I feel a bit like Bill Murray in Groundhog Day. 

Nearly all of these questions focus on the hypothetical employee who has refused to get vaccinated “just because” and the employer’s response to that decision.  So it made me smile just a bit reading a court decision that involved an employee who claimed his employer wasn’t doing enough to protect him from COVID-19.  Dukes v. Town of Kingstree , 2021 U.S. Dist. LEXIS 200476 (D.S.C. Oct. 19, 2021).  I am not sure what that says about me, but whatever.

Sulester Dukes was an at-will employee of the South Carolina Town of Kingstree. He suffers from asthma.  He alleged that he was fired for refusing to let an employee who was not wearing a mask take his temperature at work.  Dukes claimed that he had previously complained about the lax enforcement of sanitation and proper PPE protocols by his supervisors. 

These actions, alleged Dukes, raised a claim of negligent supervision and retention.  The Town responded that it owed no legal duty of care to Dukes. A magistrate judge recommended that the case be dismissed. This recommendation as accepted by Federal District Court Judge Lydon. (Dukes also brought an ADA claim, which is why the State law negligence claim was considered in Federal Court).

A law student in a first year Torts class learns that to establish a claim for negligence, a plaintiff must show: (1) the defendant owed him a duty to do or not to do any of the things alleged; (2) the defendant breached this duty; (3) the plaintiff was injured, and; (4) the defendant’s breach of duty proximately caused this injury.

Here, while the court recognized that Dukes being an at-will employee alone did not sink his claim – there are times when an at-will employee can still proceed with a negligence case.  But here, there was no legal duty of care that attached.  Dukes convoluted reasoning was that the Town knew of his complaints regarding lax enforcement of COVID protocols.  And this knowledge, but failure to take action to protect him from those shortcomings made his termination foreseeable.

The court put it otherwise:  Dukes was fired for refusing to have his temperature checked.  Dukes said the reason he refused to have his temperature checked was because the employee who was taking the temperature was not wearing a mask.  None of this created a legal duty of care.  South Carolina law on negligence and at-will employment did not permit Dukes’ claim to proceed.

The takeaway here?  Expect a lot of litigation  – some of it quite creative – as we continue to slog our way out of the pandemic.  And, of course, just because someone can sue you doesn’t mean they’re right.  Employers, stay focused and do your level best to ensure employees are treated in a non-discriminatory way while protecting your workforce.

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