SERVING OUR CLIENTS AND COMMUNITY DURING COVID-19

Do COVID-19 Whistleblowers Have Legal Protection Against Workplace Retaliation?

The COVID-19 pandemic has forced many New Jersey employees to work in unsafe work environments.  Facing increased risk of exposure, many employees are rightfully concerned that they will become infected or infect others because of their employer’s failure to have in place proper safety measures limiting the spread of COVID-19 at the workplace. Not surprisingly, many New Jersey workers who are forced to work in unsafe working environments have voiced objections to their employers, governmental officials and others concerning the unsafe work environments. With the increased number of employee complaints, many complainants are left wondering whether they have any legal protection against their employers who have taken adverse employment action against them in retaliation for their complaints. While we indeed may be living in unprecedented times, the COVID-19 pandemic is not a defense available to employers who choose to retaliate against employees for making reasonable and good faith complaints concerning unlawful workplace issues. Luckily for New Jersey workers, the state’s strong whistle-blower laws can provide employees with legal protections should they be fired from their jobs for complaining about unsafe work environments, improper quality of patient care or other unlawful business activities.

IMG_3937-300x169The New Jersey Conscientious Employee Protection Act is often described as being one of the most far-reaching, pro-employee, whistleblower statutes in the United States.  The purpose of the New Jersey anti-retaliation law is to protect whistleblowers from being retaliated against when they disclose, complain, object to or refuse to participate in certain actions at the workplace that he or she has a reasonable belief to be either unlawful, in violation of public policy or improper quality of patient care, should the employee be a licensed or certified health care professional.  A retaliatory action can manifest in the form of a demotion, suspension, termination or other forms of adverse action that would dissuade a reasonable worker from making or supporting a charge of unlawful retaliation.

Governor Murphy’s Executive Order No. 107 may also provide COVID-19 whistleblowers with additional legal support that their COVID-19 related complaints are protected under the New Jersey whistleblower law.  While Executive Order No. 107 bans many non-essential retail businesses from operating during the pandemic, it also places obligations upon essential or non-retail businesses and how they need to operate their business during the pandemic. For example, all businesses must accommodate their workforce, wherever practical, for telework or other work-from-home arrangements.  Additionally, for employees who cannot perform their job duties via telework or work-from-home, businesses should make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue. Many businesses are ignoring these requirements in running their business during the pandemic.

It was reported yesterday in the Asbury Park Press that approximately 15 workers at the Barnes & Nobles distribution center in Monroe picketed outside the facility due to what they claim to be unsafe work environments.  According to reports, nine employees at the warehouse are confirmed to be sick, with five of the nine workers testing positive for coronavirus. Employees have complained that the employer is not doing enough to protect their safety, including failing to put into place sufficient social distancing plans and not providing workers personal protective gear like face masks and latex gloves.  Workers have demanded that the company close its facility for two weeks to fully sanitize the warehouse.  Should any of these workers suffer retaliation for making these complaints, the New Jersey Conscientious Employee Protection Act, along with Executive Order No. 107, may provide a legal basis for an actionable claim of whistle-blower retaliation.

Health care workers, including doctors, nurses, hospital employees and other medical staff, may also find some job protection should they be retaliated against for speaking out against working conditions during the COVID-19 pandemic.  It has been reported that an emergency room nurse at Jersey Shore University Medical Center, Adam Witt, was reportedly terminated for voicing his concerns of medical staff being under-equipped to treat patients inflicted with coronavirus at the hospital. On March 25, 2020, Mr. Witt wrote on his Facebook page, “We don’t have proper protective gear.”  On April 1, 2020, Mr. Witt claimed that he was not permitted on the hospital’s property and was officially terminated a few days later. The Health Professionals and Allied Employees labor union’s leaders have filed complaints on Mr. Witt’s behalf claiming that he was wrongfully terminated for voicing legitimate concerns of workplace safety.  President of the Union, Debbie White, was quoted as saying, “They feel unsafe and unprotected, and they’re not hearing from the employer except to (to say) be quiet.”

Reports of unsafe working conditions have also risen in nursing homes across the state of New Jersey. As is also the case with hospitals, visitors are currently prohibited from visiting their loved ones within nursing homes, due to the state order in place since mid-March.  There have already been large numbers of positive COVID-19 tests in some nursing homes, including the CareOne nursing home in New Milford, which reportedly had sixteen residents and six staff members test positive for the virus.  There are also reports of COVID-19 related deaths in nursing homes, such as the Family of Caring at Montclair, which has reportedly had more than a dozen deaths from COVID-19 complications.

Employees should always be encouraged to and feel welcome to bring issues of unsafe working conditions to their employers, without the fear of retaliation.  This is particularly true during the pandemic and its impact on hospitals, nursing homes and other facilities where loved ones cannot be present, and are thus unable to properly advocate for proper quality of patient care for patients and medical staff.

While the COVID-19 pandemic has presented employers with unprecedented and difficult decisions to make concerning whether to stay open for business or temporarily shut down, they should never retaliate against employees who make reasonable and good faith complaints.  Instead, whistleblowers must be encouraged to bring their concerns of unsafe work environments and conditions, improper quality of patient care or other unlawful business activities so employers can work to address and remedy these issues. For those employees who unfortunately are terminated for complaining about workplace conditions and have engaged in protected activity, New Jersey’s whistle-blower protection laws may provide relief to recover from the harm caused by employers who engage in unlawful retaliation.

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