What We are Seeing

June 17, 2020

The pandemic brought pandemonium to many New Jersey workplaces. With the second largest outbreak in the country only behind New York, and being the most densely populated state in the country, New Jersey was hit particularly hard by the pandemic giving rise to a number of employee suits. In the midst of unprecedented uncertainty for employees and employers alike, New Jersey and the federal governments passed laws allocating increased protections to New Jersey employees. Namely, the Federal Families First Coronavirus Response Act (“FFCRA”), as well as amendments to the New Jersey Earned Sick Leave Law (“ESLL”), and the New Jersey Family Leave Act (“NJFLA”) and the federal enhancements to unemployment insurance made leave issues a minefield of potential pitfalls for New Jersey employers.

Not surprisingly, the Plaintiffs’ bar has begun filing pandemic-related complaints against New Jersey employers in state and federal courts. Unlike New York City courts, the New Jersey courts never restricted filings of new complaints, so there have been a steady number of Covid-related lawsuits. Almost all of these suits are brought 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 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 as to the underlying allegations of these complaints.

Leave Requests

The new leave laws created confusion and opportunity for Plaintiffs’ lawyers. While suits under the new federal leave laws such as the FFCRA and ESLL were filed, the plaintiffs often found a way to include claims under the LAD or CEPA.

Examples of New Jersey leave suits include Spells v. Physician and Tactical Healthcare Services LLC, where a former medical billing specialist filed a complaint in federal court alleging that his former employer violated the FFCRA. In Spells, the former employee alleged that his former employer denied his leave request in spite of the employee’s physician ordering the employee to self-quarantine. The former employee further alleged that he was not reinstated to his position when his physician approved his return to work.

Similarly, in Beltran v. DeerPark Drive Op. LLC, a former maintenance building technician brought claims for FFCRA interference and discrimination under the ESLL. The technician alleged that he exhibited symptoms of COVID-19 and was ordered by a physician to self-quarantine for 14 days, but his employer instructed the technician to return to work after just seven days. The technician’s complaint states that he was ultimately terminated when he refused. Notably, the employee in Beltran also brought 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 brought claims under both the NJFLA and CEPA, after allegedly suffering a pay cut for requesting to work from home due to her daughter’s COVID-19-related school closure.

In Chapman v. Alaris Health LLC. On April 22, 2020, a Certified Nurse Assistant (“CNA”) brought claims against her former employer under CEPA. The CNA 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.

The conclusion for employers in the Garden State is that if an employee has a leave related claim, it is quite likely that the employer will be sued under CEPA or the NJLAD even though the underlying basis for the claim sounds under the FFRCA or ESLL. The key to fighting off these claims is to follow the leave laws and paying particular attention to the messy intersection of state and federal law where the right answer is not always clear.

High-Risk Employees

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 plaintiffs in these cases have brought claims under both the NJLAD and CEPA. One of such cases is Perrella v. Railroad Group LLC, in which Plaintiff, who is over sixty years of age and suffered from several auto-immune disorders, allegedly expressed concerns about reporting to work, as 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, Plaintiff alleged he was left with no choice but to retire after submitting a doctor’s note to HR requesting that he be permitted to work from home or stay home during the COVID-19 pandemic due to his age, preexisting conditions, and high-risk status, but this request was ultimately rejected.

On May 13, 2020, in Boshell v. Paul Phillips, Plaintiff, who had been furloughed by her employee, alleged she requested accommodations when ordered to return to work, due to her asthma, a high-risk factor for COVID-19. Plaintiff also alleged she expressed safety concerns with her employer’s planned precautionary measures for return to work and complained of the lack of PPE and temperature checks at her employer’s surgery center. Plaintiff was subsequently terminated.

On June 4, 2020, 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 that 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 defendant’s facility.

An increase in the number of claims for failure to accommodate high-risk employees are likely to skyrocket in the coming months as employers begin reopening businesses following pandemic-related closures and employers must factor this in when considering issues connected to reopening offices. The key to avoiding these claims, or to at least reduce liability, is for employers to always 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, 2020), and Rivera v. Hovione LLC (filed April 30, 2020), Plaintiffs allege they were terminated by their respective employers after complaining about unsafe working conditions at their employer’s facilities. The Plaintiff in Milanes complained that her former employer, a nursing home, refused to test patients and pressured staff to work, even if they exhibited COVID-19 symptoms. The Plaintiff in Rivera complained about the shortage of personal protective equipment (“PPE”) and concerns about employees who recently returned from overseas 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. The best way to protect against health and safety complaints in general for employers is to make sure that all state and CDC and OSHA guidelines are complied with. If everything is being done correctly, it is going to make an employee retaliation claim for reporting health and safety concerns seem much less credible.

Anticipated Litigation Trends

These trends are a good indicator of what is to come as employers prepare for reopening. In addition, many employers fear that reopening will create even more exposure. For example, employers may be exposed to claims for unlawful discrimination of disparate impact claims 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 employees’ health for COVID-19 exposure, it is anticipated that there will be an increase in medical privacy complaints, likely brought under CEPA or the NJLAD.

Bottom Line

Though employers must be sure to comply with the various COVID-19-related leave laws, New Jersey employers should also be aware that additional, and more generous remedies are available to employees under CEPA and the NJLAD. Employers 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. Employers must also be careful to treat COVID-19-related employment decisions in accordance with applicable law. To that end, employers must treat COVID-19 symptoms or diagnoses as they 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 post-pandemic business reopenings, please contact Harris S. Freier, Partner in the firm’s Employment Law & Litigation Practice Group via email or (973) 230-2079 or Dina M. Mastellone, Chair of the firm’s Human Resources Counseling & Compliance Practice Group via email or (973) 533-0777.

Tags: GENOVA BURNS LLCHarris S. FreierLatiqua M. LilesCOVID-19Employment