united-states employment texas
I was fired for refusing to work with Typhoid, do I have any recourse?
<p>I was fired for not showing up to work as ordered.  This is after explaining to my boss over the phone that I have <a href="https://en.wikipedia.org/wiki/Typhoid_fever" rel="nofollow noreferrer">Typhoid</a>, and working with food would endanger the guests to the restaurant/arcade at which I work.  </p>

<p>Do I have any recourse at all in this situation?  As it stands, I should've just went to work anyway.  This is a followup to this question: <a href="https://law.stackexchange.com/q/32298/2414"><em>May I legally work in a restaurant with typhoid if the employer knows?</em></a></p>

<p><strong>Read the answers to your previous question.</strong> You <strong>should not</strong> have gone to work anyway. That would have been stupid and irresponsible. You would have endangered the public and would have been liable for being sued and being financially destroyed for the rest of your life.</p>

<p>You need to get treatment; find a community clinic or go to the local ER. Failure to do so will result in you possibly being <em>criminally</em> liable for infecting others in addition to being civilly liable.</p>

<p>The hospital or clinic will inform the city/county health department and they inspect the business that fired you; and if you were at the restaurant at all, inform the public as to the dangers.</p>

<p>After you have started treatment and are not contagious, Google for free legal aid in your area and talk to a lawyer. They will explain if you have a case against the business - this can depend on jurisdiction - to at least get unemployment.</p>

<p>Texas is an "at will" employment state; the question is whether there is an exception in case the employer tells you to do something illegal. <a href="https://www.warriorsforjustice.com/i-was-fired-because-i-refused-to-break-the-law/" rel="noreferrer">These guys</a> (trying to drum up business) indicate why it may not be legal to fire you for obeying the law, based on <a href="https://law.justia.com/cases/texas/supreme-court/1985/c-3312-0.html" rel="noreferrer">Sabine Pilot Services</a>, Inc. v. Hauck, 687 S.W.2d 733, where the Texas Supreme Court ruled that an employer cannot force an employee to choose between violating the law and keeping his job. You could then file a wrongful discharge suit, seeking lost and future wages and benefits, court costs, and punitive damages. The outcome you see is not a foregone conclusion. <a href="https://www.sanantonioemploymentlawblog.com/2017/01/articles/whistle-blower/texas-court-of-appeals-rejects-sabine-pilot-claim/" rel="noreferrer">This blog</a> reports a case that depended on Sabine Pilot, namely <a href="https://www.leagle.com/decision/intxco20151027601" rel="noreferrer">Peine v. HIT Services L.P</a>., 479 S.W.3d 445. The complication here is that the employee breached a confidentiality agreement, and he remained fired because although he may have been told to break the law, that wasn't the only reason he was fired. From the Sabine ruling:</p>

<blockquote>
  <p>That narrow exception covers only the discharge of an employee for the
  sole reason that the employee refused to perform and illegal act. We
  further hold that in the trial of such a case it is the plaintiff's
  burden to prove by a preponderance of the evidence that his discharge
  was for no reason other than his refusal to perform an illegal act.</p>
</blockquote>

<p>Your attorney will tell you what your prospects are for suing the guy: given the alleged action, reinstatement would not be unexpected.</p>

<p>This is one of the rare circumstances in which a non-union, non-government employee might even have a right to be reinstated in his job, in addition to potentially having a monetary remedy for wrongful termination.</p>

<p>There is a legal duty to reinstate a food employee once that employee overcomes the illness pursuant to <a href="https://www.dshs.texas.gov/foodestablishments/pdf/Industry-By-Chapter.pdf" rel="nofollow noreferrer">Texas Food Establishment Rules</a> §228.37. Failure to do so could result in the revocation of the employer's license to operate his business, or in a violation that could count towards doing so together with other violations, and would also be a matter of public record.</p>

<p>The employee could also filed a complaint under the <a href="https://www.osha.gov/Publications/OSHA3714.pdf" rel="nofollow noreferrer">FDA Food Safety Modernization Act</a>:</p>

<blockquote>
  <p>If the evidence supports an employee’s claim of retaliation, OSHA will
  issue an order requiring the employer to, as appropriate, put the
  employee back to work, pay lost wages, restore benefits, and other
  possible relief. The exact requirements will depend on the facts of
  the case. If the evidence does not support the employee’s claim, OSHA
  will dismiss the complaint.</p>
  
  <p>After OSHA issues a decision, the employer and/or the employee may
  request a full hearing before an administrative law judge of the
  Department of Labor. The administrative law judge’s decision may be
  appealed to the Labor Department’s Administrative Review Board.</p>
</blockquote>

<p>The employee may also file a complaint in federal court if the U.S. Department of Labor does not issue a final decision within certain time limits. Details on this provision can be found in OSHA’s regulations, at 29 CFR 1987.114. </p>

<p>@user6726 Also notes that under the common law of Texas, terminating someone solely for refusing to violate the law gives rise to an action for wrongful termination, citing <em><a href="https://law.justia.com/cases/texas/supreme-court/1985/c-3312-0.html" rel="nofollow noreferrer">Sabine Pilot Services, Inc. v. Hauck</a></em>, 687 S.W.2d 733 (Tex. 1985) and a subsequent case.</p>

<p>A termination of employment for this reason would also constitute a termination that is not for good cause, so the employee would be entitled to unemployment benefits.</p>
