COVID Discrimination Ruling Puts NJ Employers on Notice

What Happened:

Superior Court Judge, Judge Christopher Rafano, of Middlesex County, New Jersey ruled that an employee who takes leave due to COVID-19 symptoms was protected under New Jersey’s whistleblower and anti-discrimination laws and public policy mandates.

The employee, John Hollibaugh, was hired to manage a restaurant.  During his initial training Hollibaugh worked closely with a co-worker who tested positive for COVID-19.  While Hollibaugh did not experience any symptoms, he still quarantined for five days pursuant to CDC guidance.  After a second negative test result, he returned to work.  However, only a few days later he worked closely with another co-worker who experienced COVID-19 symptoms.  This time Hollibaugh developed many symptoms of COVID-19, including a fever, body aches, a sore throat, among others. Even with his symptoms, he still received negative test results.  Despite the negative result, Hollibaugh chose not to return to work until his symptoms had dissipated.  A few days after returning to work, he was dismissed from his job.

Hollibaugh sued his employer under the Conscientious Employee Protection Act (“CEPA”) and under a standard established by the New Jersey Supreme Court in its 1980 decision Pierce v. Ortho Pharmaceutical (“Pierce”).  Both CEPA and Pierce protect even at-will employees from wrongful discharge when the discharge is alleged to be contrary to public policy.  Additionally, Hollibaugh sued his employer the New Jersey Law Against Discrimination (“NJLAD”).  In examining the complaint, the Court held that he had pled “a causal nexus between his exercise of an established right grounded in public policy and his termination.”  The Court also held it was “satisfied there is a connection” that Hollibaugh “was fired within days of informing his employer that he was once against experiencing COVID-19 symptoms.”  Because Hollibaugh was able to plead this connection via his complaint, the parties will be forced to proceed into discovery and potentially a trial.

Why You Need To Know About This:

This is a case of first impression, meaning this presented a unique legal issue that had not been decided by New Jersey courts.  The decision grants protections under various New Jersey laws barring alleged retaliation, discrimination, and violations of public policy mandates.  It is a first of its kind ruling, at least in the form of a written judicial opinion, that provides protections to workers who experienced COVID symptoms.

What You Should Do:

This case is just one example of pitfalls that may befall any business.  New Jersey law places a high degree of concern for employee workplace safety and general employee protections, and businesses must be aware of which laws and public policy mandates impact them and their employees.  It is best to seek legal advice on any employment-related question before action is taken.  In order to avoid a costly lawsuit such as the one noted above, it is imperative to obtain up-to-date legal advice.  If you have any employment questions, we are ready to assist.