By: Seth D. Goldstein
On January 21, 2022, Outagamie County Circuit Court Judge, Mark McGinnis, issued a preliminary injunction preventing certain healthcare workers from leaving their place of work. The injunction was originally to stand until ThedaCare—the employer and the proponent of the injunction—could find replacements for the employees. In issuing this injunction, Judge McGinnis relied on a Wisconsin statute, which provides that: the court “shall give substantial weight to any adverse impact on public safety” when determining if a temporary injunction is an appropriate remedy.[1] On January 24, 2022, Judge McGinnis lifted that injunction, claiming that ThedaCare hadn’t “satisfied their burden”[2] and could rely on “alternative staffing solutions”[3] to preserve patient care.[4]
The issue began when several ThedaCare at-will employees accepted offers at Ascension Health, the third largest private healthcare system in the United States.[5] The employees—seven in total— were all part of an eleven-member interventional radiology and cardiovascular team, at ThedaCare Regional Medical Center-Neenah, a Level II trauma center about ten miles south of Appleton, Wisconsin. The next closest Level II trauma center is in Green Bay, Wisconsin, about forty miles away. Arguing that this distance would have a severe adverse impact on public safety since each minute is critical in a trauma scenario,[6] ThedaCare requested that Judge McGinnis temporarily block these employees from beginning work at Ascension until ThedaCare could find replacements for them.
Ascension, however, claimed that the ThedaCare employees were not recruited. Moreover, because the employees accepted positions in December and gave their notice at that time, ThedaCare had the opportunity to put together a competitive offer to encourage the employees to stay.[7] Despite this time, the seven healthcare workers claim that ThedaCare did not provide any counteroffers.[8]
Since the COVID-19 pandemic began in early 2020, the global economy has recognized certain frontline, or “essential” workers, as employees whose work could not cease despite public health concerns. According to the U.S. Department of Homeland Security, essential workers are those who “conduct a range of operations and services that are typically essential to continue critical infrastructure operations.”[9]
The pandemic has had a particularly large impact on essential workers in the healthcare field. One study, conducted at the height of the pandemic in 2020, found that 28% of healthcare workers experienced anxiety, 20.1% experienced distress, and 30.6% experienced depression as a result of employment conditions during the pandemic (e.g., access to PPE, working longer shifts, and staying away from family to avoid bringing the virus home).[10] Healthcare worker burn-out is now having an impact on healthcare employment rates. In April of 2020, health employment dropped by 9.3%.[11] While people are returning to work and closing the gap for unemployment in the healthcare sector, the industry is still not back to its pre-pandemic employment rate. As of November 2021, the total health sector had seen a decrease in employment by 5.8%.[12] It is therefore not surprising, nor is it uncommon, that these seven healthcare workers sought more competitive employment packages elsewhere.
Judge McGinnis’s preliminary injunction, however temporary, illustrated the unique situation where judicial intervention in at-will employment relationships may be necessary during times of extreme stress that risk public health. While Judge McGinnis has since concluded that ThedaCare had not “met their burden,” in showing adverse impact on public safety, he has yet to clarify what would meet that burden. In other words, under what circumstances might a judge issue an injunction to prevent at-will employees from leaving their job during a health crisis? Given the current prolonged pandemic state, it could be something we see in the near future, as employers struggle with what people are calling the “Great Resignation.”[13] If future injunctions restraining employees from leaving their jobs are issued, it would severely limit employee bargaining power, and would call into question what “at will” employment really means.
[1] Wis. Code § 813.02 (2010).
[2] Chaunie Brusie, Update: WI Judge Lifts Injunction That Attempted to Stop Employees From Quitting ThedaCare, Nurse.org, (Jan. 24, 2022, 4:00 PM), https://nurse.org/articles/wisconsin-thedacare-nurses-lawsuit/.
[3] Mohd Kamran, ThedaCare, Ascension Court on the Employment of Health Care Workers, BESTINAU, (Jan 24, 2022), https://bestinau.net/thedacare-ascension-court-on-the-employment-of-health-care-workers.
[4] ThedaCare, Inc. v. Ascension NE WI, Inc., 2022CV000068, (2022).
[5] 100 of the Largest Hospitals and Health Systems in America 2021, Becker Hospital Rev., https://www.beckershospitalreview.com/100-of-the-largest-hospitals-and-health-systems-in-america-2021.html.
[6] Madeline Heim, Wisconsin health care workers will be allowed to start new jobs at Ascension after judge dismisses temporary restraining order, Post Crescent (Jan. 24, 2022, 9:58 AM), https://www.postcrescent.com/story/news/2022/01/24/thedacare-ascension-court-over-health-care-worker-employment/6635683001/.
[7] Heim, supra note 5.
[8] Id.
[9] COVID-19: Essential Workers in the states, National Conference of State Legislatures, NCSL, https://www.ncsl.org/research/labor-and-employment/covid-19-essential-workers-in-the-states.aspx (last visited Jan. 11, 2021).
[10] Stephen X. Zhang et al., At the height of the storm: healthcare staff’s health conditions and job satisfaction and their associated predictors during the epidemic peak of COVID-19., 92 Brain Behavior & Immunity 243 (2020).
[11] Id.
[12] Id.
[13] Ian Cook, Who is Driving the Great Resignation?,Harvard Business Review (Sept. 15, 2021), https://hbr.org/2021/09/who-is-driving-the-great-resignation.
