The New Jersey whistleblower law, or “CEPA”, forbids an employer from taking retaliatory action against an employee because he/she objects to, or refuses to participate in, any activity, policy, or practice which the employee reasonably believes:
- is in violation of a law, or a rule or regulation promulgated pursuant to law,
- is fraudulent or criminal, or
- is incompatible with a clear mandate of public policy concerning the public health, safety, or welfare.
Two recent New Jersey court cases make clear that CEPA protection extends to (1) workers who refuse to report to work due to COVID quarantine, and (2) workers who complain about their employers’ failure to meet COVID safety protocols. These cases offer important insights to all potential CEPA plaintiffs, whether their claims are related to COVID or no. Let’s take a closer look.
Termination After Refusal To Work Due to COVID
In Beltran v. 2 Deer Park Drive Operations, LLC, (District Court of New Jersey, February 2021), the plaintiff was a maintenance tech for a nursing home. On April 2, 2020, the same day he called out due to feeling ill, the plaintiff’s mother was hospitalized and diagnosed with COVID-19. Due to his close contact with his mother, the plaintiff shortly received a letter from the county Department of Health (DoH), directing him to quarantine for two weeks, from April 2nd through April 16th. The DoH further contacted the nursing home and informed it of the plaintiff’s quarantine.
Initially, the nursing home told the plaintiff he was still required to report to work, then switched course and directed him to return on April 13th or be terminated. When the plaintiff refused to report to work on the 13th, the home terminated him the same day – just 3 days prior to the conclusion of his quarantine.
The plaintiff then sued the nursing home, including a claim for damages under CEPA. The nursing home attempted to dismiss the claim, arguing that a then-current NJ Department of Health guidance permitted employers to allow asymptomatic employees to report to work under limited circumstances, making the plaintiff’s belief that his return to work was in violation of a law, rule/regulation or clear public policy mandate “unreasonable.” The Court disagreed, noting that this was a general, state-level guidance that did not address a specific, local government order to quarantine, such as the one the plaintiff was subject to. Thus, the Court allowed the plaintiff’s CEPA claim to proceed.
There are a couple of key takeaways here:
- Refusing to act, such as refusing to work, may be protected whistleblowing: Many CEPA claims involve formally objecting or complaining, usually in writing, to employer activities that the employee reasonably believes violate a law, rule, regulation, or clear mandate of public policy. However, Beltran reminds us that a simple “refusal to participate” in such activities may also be protected by CEPA. As the Court noted: “In order to be protected against retaliatory action . . . the employee need not actually make a report to anyone, but can simply refrain from acting.”
- Being Able to Point to An Enforceable Government Order Makes All the Difference. The Beltran Court indicated that the plaintiff may still have alleged a CEPA claim even without the quarantine order, reasoning that the data on COVID infections and deaths alone support a “reasonable belief” that his return to work was dangerous to public health and safety.
However, the “clincher” of the Court’s decision was the county quarantine order, which the county DOH was entitled to enforce by statutory authority. As such, it was eminently reasonable for the Plaintiff to believe that his return to work would violate a law, rule/regulation, or clear public policy mandate.
Put another way: if you’re a whistleblower, you don’t necessarily have to cite to the specific law, rule/regulation, or public policy you believe your employer is violating. But it helps a great deal if you can.
Termination After Complaining About Failure To Follow COVID Safety Protocols
In Loeb v. Vantage Custom Classics, Inc. (Essex Superior Court, November 2020), the Plaintiff was fired after complaining to his employer about the employer’s failure to notify employees of their exposure to COVID-infected co-workers. Notably, his termination occurred in mid-March 2020, when few guidelines had yet been issued regarding COVID – and indeed before much was known about the virus. Nonetheless, the Plaintiff filed a CEPA claim against his employer, alleging that he was fired for objecting to the employer’s violation of a clear mandate of public policy regarding health and safety.
In support of his claim, the Plaintiff cited OSHA and CDC guidances and recommendations on COVID safety protocols, issued before or around the time of his termination. Moreover, he cited Executive Orders issued by Governor Phil Murphy the month after his termination, particularly an April 8th Executive Order mandating that employers notify workers of exposure to COVID in the workplace.
The employer sought to dismiss the suit, arguing that mere advisements issued by OSHA/CDC were just that: advisements, without the force of law. Moreover, the employer argued that the Executive Orders were not issued until after the Plaintiff’s firing. As such, the employer argued that the Plaintiff could not have held a “reasonable belief” that the employer’s failure to notify violated a clear mandate of public policy, since preliminary and unsettled guidances were not enough to establish such a mandate.
The Court, however, disagreed, allowing the Plaintiff’s claim to proceed. The court reasoned that, as the COVID pandemic progressed, many governmental guidances became mandates, therefore supporting Plaintiff’s reliance on them. Moreover, the Court stated: “Even after termination it is reasonable and altogether fair to suggest that Plaintiff may rely on all orders and regulations set forth before and directly after termination” in pursuing his CEPA claim.
The Upshot: Proceed With Caution
Loeb seems to indicate that courts are willing to entertain CEPA claims that use guidelines or “best practices” to allege the violation of a clear mandate of public policy – or even executive orders that weren’t even in effect until after the Plaintiff suffered harm. However, I see some important caveats:
- The Authority Behind the Guidelines Matters: Bigger is Better. The Loeb Plaintiff didn’t rely upon “best practices” issued by a local trade group or health association. Rather, the Plaintiff cited to OSHA and the CDC: two federal organizations responsible for ensuring the nation’s workplace safety and protection from disease.
- The Timing of Mandates Plays a Role. Again, although the Loeb Court allowed the Plaintiff to rely upon Executive Orders dated subsequent to his termination, they only followed by a couple of weeks or so.
It remains to be seen how New Jersey courts will address CEPA claims arising from COVID. In the meantime, if you believe you have a whistleblower claim, please call our offices today for a free consultation with an experienced New Jersey employment lawyer.