Given the rapid spread of the COVID-19 virus and the related non-stop media coverage, employees are naturally concerned about the workplace implications of this pandemic. Let’s take a look at two potential termination scenarios and the job protections available to employees in each.
I am a New Jersey employee who tested positive for COVID-19 and am now in quarantine. Can my employer fire me?
As of the date of this article, Governor Phil Murphy has declared a state of public health emergency for New Jersey. Those who test positive for the virus are placed by their local Department of Health in quarantine until their recovery. Moreover, state health officials are urging anyone exposed to those testing positive for COVID-19 to self-quarantine for a period of fourteen days.
If you have the misfortune of contracting a confirmed case of COVID-19, and you are not a temp employee, you are legally protected from being fired due to your quarantine. N.J.S.A. §26:13-16 states:
Any person who has been placed in isolation or quarantine pursuant to an order of the [health] commissioner and who at the time of quarantine or isolation was in the employ of any public or private employer, other than a temporary position, shall be reinstated to such employment or to a position of like seniority, status and pay . . .
However, there are three prerequisites such an employee has to meet before this statutory protection kicks in. You must:
- Receive a certificate from your authorized local health department that you have completed your quarantine;
- Be able to perform the duties of your job position; and
- Make an application for reemployment within 90 days after being released from quarantine.
If you fulfill these three conditions, then you have the right to file a legal claim against your employer should it fire you or demote you following your quarantine. The sole exception – and it’s an important one – is if your “employer’s circumstances have so changed as to make it impossible or unreasonable” to allow you to return to work as usual. Granted, “impossible” and “unreasonable” are high standards to meet. However, in the early stages of this pandemic, it’s conceivable that certain industries may be upended to the degree that employers have no choice but to engage in layoffs that include previously ill workers.
UPDATE: New Jersey Legislature Passes Job Protection For Coronavirus Victims
On March 19, 2020, shortly after the publication of this article, Governor Phil Murphy signed a law offering job protection to COVID-19 positive workers.
Briefly, the law provides that, for the duration of the State of Emergency declared by Governor Murphy in response to the pandemic, an employer shall not:
- Terminate or otherwise penalize an employee if the employee requests or takes time off from work, based on the recommendation of a medical professional, because the employee has, or is likely to have COVID-19.
- Refuse to reinstate the employee, upon the expiration of his/her leave, to the same position held when the leave commenced, and with no reduction in seniority, status, employment benefits, pay or other terms and conditions of employment.
I am a New Jersey employee who has not tested positive for COVID-19, but I’m fearful of contracting the virus and don’t want to report to work. Can my employer fire me?
The answer to this question is the one that most frustrates our clients: It depends.
Under the Occupational Safety and Health Act, §13(a), workers are entitled to refuse work if they have a reasonable belief that such work would expose them to “imminent danger”, defined as: “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm. . . ” Moreover, this threat of death or serious physical harm must be imminent, meaning likely to occur soon and well before OSHA personnel could arrive at the workplace for inspection.
Accordingly, if you have no sick days/PTO available, you’re otherwise healthy, and your fear of COVID-19 is tempting you to stay home, ask yourself: Is my belief that I might contract the virus via my work thoroughly reasonable? If it isn’t, you can and will risk being lawfully terminated.
Obviously, what is a “reasonable” belief rests entirely upon the circumstances. For instance, a 60-year-old nursing home aide with an underlying respiratory condition may have an arguably reasonable belief that being made to provide hands-on assistance to nursing home residents with COVID-19 poses an imminent danger to her health, if not life. However, a 30-year-old “big box” store clerk who is simply afraid of exposure from customers has a weak claim for refusing work and could be discharged for doing so. As such, you would do well to consult with an employment attorney before deciding to stay home.
Please note that the National Labor Relations Act (“NRLA”) may provide protection for those employees refusing to work due to COVID-19, as the Act prohibits employers from disciplining or terminating workers for engaging in “concerted activity for mutual aid or protection.” Specifically, the National Labor Relations Board has described “participating in a concerted refusal to work in unsafe conditions”, or a concerted effort to improve employment conditions, as such protected activity. Conceivably, then, the NRLA might prohibit employers from firing or taking other adverse action against employees who refuse work as a group due to COVID-19.
However, as discussed above, those workers should be able to articulate a reasonable belief that their workplace is unsafe and the danger of infection imminent because of it. For instance, a group of hospital janitors/cleaning staff who refuse to work because the hospital has failed to supply them with protective gear might arguably be protected by the NRLA. The coronavirus is posing novel legal questions and challenges as it spreads. If you have a question about how COVID-19 impacts your employment, call our offices today for a free consultation.