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Saturday, March 27, 2021

NJ Workplace Retaliation, Whistleblower Employee Fired While On Covid-19 Quarantine

NJ employees may be getting pressure from their bosses and experience illegal employment retaliation for their wanting to adhere to Covid -19 safeguards in the workplace. If your boss retaliates against you because you complained about the lack of wearing masks in the workplace or lack of social distancing, you may have an employment retaliation claim under CEPA, NJ  whistleblower statute, the Conscientious Employee Protection Act (“CEPA”), N.J.S.A. § 34:19-1 to 34:19-14. You may also have a claim if your employer retaliated against you for refusing to return to work while your health care provider still has you on house quarantine.

Such a matter was recently brought before the Court in NJ, and the Court ruled, among other determinations,  that the terminated employee could go forward with his employment retaliation claim that he brought under the Conscientious Employee Protection Act and denied the employer’s motion to have the that claim dismissed.

According to the unpublished opinion in Beltran v. 2 Deer Park Drive Operations, LLC, filed February 28, 2021, the terminated employee made allegations of an unlawful COVID-19-related termination of his employment. The employee had worked as a full-time maintenance technician at a nursing home.

In March of 2020, the employee and his supervisor performed work in the room of a resident who later tested positive for COVID-19. Three days later, the employee learned of the resident's positive COVID-19 test results at a meeting. He inquired as to whether he needed to get tested based upon this exposure, but the facility administrator wrongly advised him that he did not need to get tested if he was asymptomatic. The employee soon began experiencing weakness and a sore throat and called out sick three days later on March 30, 2020. That same day, a Human Resources representative ordered him to submit supporting medical documentation.

Over the next three days, Plaintiff contacted his primary care physician's office and was advised each time they would get back to him but failed to do so, and he also contacted an urgent care facility, which declined to see him based upon his symptomology. He contacted his supervisor to explain his situation. On April 2, 2020, his supervisor contacted him and advised that if he was asymptomatic, he could return to work. That evening, Plaintiff learned that his mother had been hospitalized.

On April 6, 2020, the town’s Division of Health (" DOH") informed the employee that his mother had tested positive for COVID-19 and that he needed to quarantine for two weeks.  The DOH representative told him that she would contact his employer. A corresponding document issued by the Hamilton DOH, titled "Agreement for Active Monitoring Quarantine Required," (DOH Quarantine Order), indicated that DOH instructed Plaintiff to quarantine from April 2 to April 16, 2020. That document states, in relevant part:

“You are being placed in quarantine for 14 days  from your last exposure. Quarantine in general means separation of a person or group of people reasonably believed to have been exposed to a communicable disease but not yet symptomatic, from others who have not been exposed, to prevent the possible spread of the communicable disease.

a. this means that you are not allowed to go beyond the quarantine premises, and you shouldn't have contact with any person(s) not subject to quarantine other than a physician, other health care providers, or persons authorized to enter the quarantine premises as indicated by public health officials.”

The employee contacted his supervisor and explained the situation and the need for quarantine, but his supervisor nevertheless told him that he was still required to report to work. The employee contacted his supervisor again who told him that he could stay out only until April 13, 2020, three days less than the time mandated by the DOH Quarantine Order.

The employer informed the employee on April 9, 2020, that his employment would be terminated if he did not report to work on April 13, 2020, again three days less than the Quarantine Order. The employee followed the Quarantine Order and did not report to work on April 13, 2020, and Defendants terminated his employment that day.

There is no requirement that the employee cite or name the actual statute or regulation that he believes the employer is violating. In certain instances, the employee does not actually have to make a report to anyone, but can refrain from acting and still be protected against retaliatory action by his employer under CEPA. CEPA prohibits employers from taking retaliatory action against employees who engage in certain protected whistle-blowing activity, including objecting to, or refusing to participate in, employer activities that the employee reasonably believes is in violation of a law, rule, regulation or a clear mandate of public policy.

The Court stated the elements for a CEPA claim to proceed under Section 34:19-3(c), “a plaintiff must allege that he:

(1) "reasonably believed that his employer's conduct was violating either a law, rule, or regulation . . ., or a clear mandate of public policy;

(2) objected to, or refused to participate in his employer's conduct;

(3) an adverse employment action was taken against him . . .; and

(4) a causal connection exists between the [objection or refusal] and the adverse employment action."

As stated by the Court, there is no requirement that the activity complained of by the employee be an actual violation of a law or regulation, only that the employee 'reasonably believes' that to be the case. The Court also noted that the offensive activity must pose a threat of public harm, not merely private harm or harm only to the aggrieved employee.

The Court held that the nursing home employee sufficiently pled all four elements of a CEPA claim and allowed his claim to go forward.

  • “First, Plaintiff alleges that he believed Defendants' conduct instructing Plaintiff to return to work-violated a law, rule, regulation or clear mandate of public policy in part because the Hamilton DOH instructed him to quarantine for two weeks due to his COVID-19 exposure... The record contains the Hamilton DOH Quarantine Order that indicates Plaintiff was under quarantine instructions during the time Defendants instructed him to report to work.
  • As to the second element of a CEPA claim, Plaintiff alleges that he refused to return to work based on the Hamilton DOH's quarantine instructions.
  • Third, Plaintiff alleges that Defendants terminated his employment for refusing to return to work despite advising them of the quarantine instructions.
  • Finally, Plaintiff alleges that Defendants terminated his employment notwithstanding the Hamilton DOH's quarantine order.”

The Court indicated that even without the Quarantine Order in place, it may have been protected activity for the employee to not return to work. “To the extent Defendants attempt to argue that Plaintiff's return to work may not have been considered ‘dangerous to the public health, safety, or welfare’ the Court disagrees. COVID-19 is a highly contagious respiratory virus that has resulted in a global pandemic, infecting over 27,000,000 million people and claiming approximately 500,000 lives in the United States.”

Notable in this case, the Court stated for an employee to be protected against retaliatory action. he does not actually make a report to anyone, but can “simply refrain from acting.” Here the employee refrained from returning to work against this employer’s directive because he reasonably believed it posed a significant risk to public harm.

DO NOT SIT ON YOUR RIGHTS!

If you think you have been retaliated against for whistleblowing, you should contact this law firm as soon as possible. I am an experienced and successful employment attorney who will be aggressive about enforcing your rights.  I have successfully represented numerous employees whose employers retaliated against them after they “whistleblew” and been successful in recovering money for them.

If you have been demoted, had your hours cut, terminated, harassed or been subjected to retaliation for complaining about, objecting to, refusing to participate in, or reporting what you reasonably believed to be employer conduct that was violating a law, rule, or regulation, or a clear mandate of public policy or posing a threat of public harm, you may have a valid Whistleblower Claim.

IF YOU ARE THINKING OF RESIGNING

If you are thinking about resigning, you should contact an experienced employment law attorney before you do so. If you think your employer is forcing you out or illegally retaliating against you, you should call me now for a free consultation. I have successfully represented employees of public entities and private employers, who were harassed, retaliated against, or terminated and was successful in obtaining monetary compensation for them. Do not sit on your rights, or you may lose the right to file your claim.

If you are being subjected to such unlawful workplace retaliation, contact Hope A. Lang, Attorney at Law today for a free consultation. I accept whistleblower and discrimination cases from all over New Jersey.

New Jersey employment attorney, Hope A. Lang, Attorney at Law serves clients throughout the state, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Southern, Central, Western and Northern NJ to meet with clients.



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