As of the date of this article, several states are making preparations to re-open certain sectors of their economies in the wake of the COVID-19 pandemic. With New Jersey being the worst-hit state after New York in terms of infections and deaths, however, Governor Murphy has indicated that the status quo will continue for the foreseeable future, with most businesses closed or operating under lockdown.
As the situation persists, a growing number of employees are wondering whether they are being made to work in conditions that are illegal, or that threaten both personal and public health and safety. If you’re such an employee, the New Jersey Conscientious Employee Protection Act, or “CEPA”, may offer you protection against retaliation should you choose to complain about illegal/unsafe working conditions related to COVID-19.
How CEPA Works
CEPA is known popularly as the “whistleblower statute”, since it protects workers who “blow the whistle” on their employers for certain conduct. Specifically, CEPA prohibits employers from retaliating against any worker who objects to, or refuses to participate in, activity that the employee reasonably believes:
- Violates a law or regulation;
- Is fraudulent or criminal; or
- Violates a clear mandate of public policy concerning the public health, safety or welfare
Potential CEPA whistleblowers should keep in mind two important additional requirements that must be met to enjoy the law’s protection:
- First, your belief that your employer is engaging in illegal, fraudulent or criminal activity, or activity contrary to public policy, must be reasonable. In ideal cases, clients can point to a specific law their employer is breaking, or show that their employer’s conduct is so extreme that it contravenes public policy on its face (say, for example, knowingly selling expired products that could sicken customers). Claiming your employer is violating internal company policies or “best practices” that only govern employees usually doesn’t cut it.
- Second, you have to protest and/or report your employer’s conduct, either internally to management or externally to an appropriate regulatory authority or the press. Such protesting and reporting, ideally, should be documented in writing.
Potential COVID-Related CEPA Claims
Given the foregoing, we foresee two common scenarios for COVID-related CEPA claims:
Workers who protest being required to report to work onsite for non-essential businesses.
Governor Murphy’s Executive Order Number 107, effective March 21, 2020, mandates that “the brick-and-mortar premises of all non-essential retail businesses” be closed to the public for the duration of the order. The only exceptions are for “essential” retail businesses, defined to include groceries/food stores; pharmacies/dispensaries; gas stations; and other services deemed necessary.
Accordingly, an employee for a non-essential retail business (say, a facialist for a medspa) may complain and protest against her employer’s direction to show up to work onsite (say, to give preferred customers skin treatments). Should her employer fire her for doing so, it gives rise to a CEPA claim.
Workers who protest being required to work without adequate personal protective equipment (PPE)
OSHA’s Personal Protective Equipment (PPE) standards require workers to use and employers to supply gloves, eye and face protection, and respiratory protection when job hazards warrant it. The wrinkle is that lingering questions about how COVID-19 is transmitted and with what ease still remain. In response, OSHA issued a COVID-19 Guidance that classifies workers into risk levels: The higher the risk level, the more urgently employers are advised to provide workers with COVID-tailored PPE.
Naturally, nurses and doctors, nursing home workers, EMS and ambulance personnel, and other healthcare workers who come into direct contact with COVID patients are considered by OSHA as high-risk and in need of PPE. Such workers who complain and protest against their employer’s failure to provide masks or other gear are protected from retaliation by CEPA. However, the extent of CEPA protection becomes less clear for medium- or lower-risk workers, and thus more dependent upon their individual and local circumstances. A grocery store clerk in rural Sussex county, for example, who complains his employer directed him to wear a bandanna in lieu of providing him a surgical mask might have a hard time proving a CEPA claim. But the same grocery store clerk might easily make a claim if he worked in Bergen County – the epicenter of New Jersey’s pandemic – and at a location where several of his co-workers tested positive for COVID.
Ultimately, these issues will be hashed out in the courts, but for the time being, it’s best to use the common-sense rule of thumb: The riskier my job, the more protection I have against retaliation if I complain.
Concerned you are being targeted for termination or otherwise harassed for your whistleblowing conduct? Call our offices today for a free consultation.