The pandemic brought pandemonium to many New Jersey workplaces. With the second-largest outbreak in the country (behind only New York) and being the most densely populated state, New Jersey was hit particularly hard by the pandemic, giving rise to a number of employee lawsuits.
Unlike New York City courts, the New Jersey courts never restricted filings of new complaints, so there has been a steady stream of COVID-19-related lawsuits. Almost all of them are filed under the New Jersey Law Against Discrimination (NJLAD) and/or the Conscientious Employee Protection Act (CEPA) regardless of the underlying allegations.
The reason of course is because both statutes provide very generous damages in terms of the potential for uncapped compensatory damage awards, as well as punitive damages and attorneys’ fees. We surveyed state and federal filings in New Jersey related to COVID-19 and found three distinct themes to the underlying allegations.
In the midst of unprecedented uncertainty for employees and employers alike, New Jersey and the federal government passed laws allocating increased protections to New Jersey employees. Namely, the federal Families First Coronavirus Response Act (FFCRA) and amendments to the New Jersey Earned Sick Leave Law (ESLL) and the New Jersey Family Leave Act (NJFLA), as well as federal enhancements to unemployment insurance, made leave issues a minefield of potential pitfalls for New Jersey employers.
The new leave laws created confusion and opportunity for employees’ lawyers. Although employees filed lawsuits under the new leave laws such as the FFCRA and the ESLL, they often found a way to include claims under the NJLAD or CEPA.
Examples of New Jersey leave lawsuits include Spells v. Physician and Tactical Healthcare Services LLC, in which a former medical billing specialist filed a federal court complaint alleging his former employer violated the FFCRA. In Spells, the former employee alleged his former employer denied his leave request even though his physician ordered him to self-quarantine. He further alleged he wasn’t reinstated to his position when the physician approved his return to work.
Similarly, in Beltran v. DeerPark Drive Op. LLC, a former maintenance building technician filed claims for FFCRA interference and discrimination under the ESLL. He alleged he exhibited COVID-19 symptoms and was ordered by a physician to self-quarantine for 14 days, but the employer instructed him to return to work after just 7 days. His complaint states he was ultimately terminated when he refused. Notably, the employee in Beltran also filed claims for perceived disability discrimination under the NJLAD and unlawful discharge under CEPA.
Relatedly, in Leibovitz v. Hope Community Charter School Foundation, a charter school social worker filed claims under both the NJFLA and CEPA after allegedly suffering a pay cut for asking to work from home because of her daughter’s COVID-19-related school closure.
In Chapman v. Alaris Health LLC, on April 22, a certified nurse assistant (CNA) filed claims against her former employer under CEPA. She allegedly was denied leave and required to report to work because she was asymptomatic, although her healthcare provider directed her to self-quarantine following direct exposure to patients subsequently diagnosed with COVID-19.
Action steps. The conclusion for Garden State employers is that if an employee has a leave-related claim, it’s quite likely the employer will be sued under CEPA or the NJLAD even though the underlying basis for the claim sounds like it belongs under the FFRCA or ESLL. The key to fighting off the claims is to follow the leave laws and pay particular attention to the messy intersection of state and federal law when the right answer isn’t always clear.
Many claims have been filed by employees seeking to avoid the workplace based on a preexisting condition or illness, making them particularly vulnerable to COVID-19. The employees in the cases have filed claims under both the NJLAD and CEPA.
One case is Perrella v. Railroad Group LLC, in which the employee, who is over 60 years of age and suffered from several autoimmune disorders, allegedly expressed concerns about reporting to work because she considered herself high-risk. The complaint alleges that as a result, she was subjected to a hostile working environment and subsequently terminated.
Similarly, in Allen v. L3 Harris Tech, the employee alleged he was left with no choice but to retire after submitting a doctor’s note to HR asking to work from home or stay home during the COVID-19 pandemic because of his age, preexisting conditions, and high-risk status, but the request was ultimately rejected.
In Boshell v. Paul Phillips, an employee who had been furloughed was ordered to return to work and alleged she requested accommodations because of her asthma, a high-risk factor for COVID-19. She also alleged she expressed safety concerns about her employer’s planned precautionary measures for returning to work and complained of the lack of personal protective equipment (PPE) and temperature checks at the company’s surgery center. She was subsequently terminated.
On June 4, a former salesperson filed a complaint in Henslowitz v. Thunderball Marketing, Inc., alleging he made complaints about health and safety risks at his employer’s facility after another employee was diagnosed with COVID-19. The complaint further alleges the former salesperson, who was 69 years old and disabled, was subsequently the only employee instructed not to return to work, and to apply for unemployment, upon reopening of the employer’s facility.
Action steps. The number of claims for failure to accommodate high-risk employees is likely to skyrocket in the coming months as employers begin reopening businesses following pandemic-related closures, and they must factor this in when considering issues connected to reopening offices. The key to avoiding the claims, or at least reducing liability, is always to engage in the interactive process.
Health and Safety Complaints
Additionally, employees have filed claims under CEPA alleging adverse employment actions after making complaints about poor working conditions related to COVID-19. For example, in Milanes v. Alaris Health, LLC (filed April 22) and Rivera v. Hovione LLC (filed April 30), employees alleged they were terminated by their respective employers after complaining about unsafe working condition:
- The employee in Milanes complained her former employer, a nursing home, refused to test patients and pressured staff to work even if they exhibited COVID-19 symptoms.
- The employee in Rivera complained about the shortage of PPE and concerns about employees who recently returned from overseas trips exhibiting COVID-19 symptoms.
CEPA specifically protects healthcare employees who complain about issues involving patient care, so healthcare employers are seeing and will continue to see a significant number of CEPA claims.
Action steps. The best way to protect against health and safety complaints in general is to make sure you comply with all state, Centers for Disease Control and Prevention (CDC), and Occupational Safety and Health Administration (OSHA) guidelines. If everything is being done correctly, it’s going to make an employee’s retaliation claim for reporting health and safety concerns seem much less credible.
Anticipated Litigation Trends
The trends provide a good indicator of what is to come as employers prepare for reopening. In addition, many employers fear reopening will create even more exposure. For example, they may be exposed to claims for unlawful discrimination if certain employees are returned to work, while others remain furloughed or are terminated.
Additionally, as worksites reopen and require employees to do temperature checks and monitor their health for COVID-19 exposure, it’s anticipated there will be an increase in medical privacy complaints, likely filed under CEPA or the NJLAD.
Though all employers must be sure to comply with the various COVID-19-related leave laws, New Jersey employers should be aware that additional, more generous remedies are available to employees under CEPA and the NJLAD. You must implement a reopening plan in accordance with state, local, CDC, and OSHA guidelines and take heed to respond to employee complaints regarding unsafe working conditions.
You also must be careful to treat COVID-19-related employment decisions in accordance with applicable law. To that end, you must treat coronavirus symptoms or diagnoses as you would any other disability and always engage in the interactive process.
Genova Burns LLC will continue to monitor and provide updates on COVID-19-related employment law trends. For more information regarding employer best practices relating to COVID-19 and business reopenings, please contact Harris S. Freier, a partner in the firm’s employment litigation practice group at email@example.com, or Dina M. Mastellone, chair of the firm’s human resources counseling and compliance practice group at firstname.lastname@example.org