Key Takeaways

• Employees who complain to an employer about its measures to avoid transmission of COVID-19 in the workplace may be protected under the New Jersey Conscientious Employee Protection Act

• Employers should not retaliate against employees who make complaints that they feel unsafe in the workplace due to COVID-19 or that it has not implemented adequate policies to avoid the spread of COVID-19 in the workplace

On November 2, 2020, the New Jersey Superior Court of Essex County in Loeb v. Vantage Custom Classics Inc., ruled that a plaintiff could proceed with a lawsuit against his former employer under the New Jersey Conscientious Employee Protection Act (CEPA), for his alleged termination in retaliation for expressing concerns about worker safety and seeking to implement various COVID-19-related safety protocols and measures. This is one of the first lawsuits to address the applicability of CEPA to COVID-19-related employee complaints.

CEPA, New Jersey’s whistleblower protection law, prohibits all New Jersey employers from retaliating against employees who disclose, object to, or refuse to participate in actions that the employee reasonably believes are illegal or in violation of public policy. The New Jersey courts have interpreted “public policy” broadly. In Loeb, the court concluded that the various COVID-19 guidelines issued by New Jersey Gov. Phil Murphy, OSHA, and the CDC were a sufficient basis for the plaintiff to base his CEPA claim.

In Loeb, the plaintiff alleged COVID-19-related concerns from March 2 through March 19, 2020, the day he was terminated. However, much of the COVID-19 related guidance and restrictions had not been issued at that time. While Gov. Murphy created a Coronavirus Task Force on February 3, 2020, and declared a public health emergency and state of emergency on March 9, 2020, he did not order non-essential businesses to close or reduce hours until March 16, 2020 (three days before the plaintiff’s termination). He first issued a stay-at-home order after the plaintiff’s termination and did not issue restrictions for certain essential businesses (e.g., retail, warehousing, manufacturing, and construction) until April 8, 2020. Nevertheless, the Loeb court relied on all of his orders in making its ruling, including those issued after the plaintiff’s termination.

This opinion suggests CEPA may protect employees who complain to employers about feeling unsafe at work due to COVID-19 from retaliation, such as discipline or termination, even if those complaints were made at the very beginning of the pandemic. Employers should be mindful of the COVID-19-related safety protocols they implement (e.g., employers should strongly consider employees working from home, temperature checking , personal protective equipment (PPE), and social distancing), and take care not to retaliate against employees who do not feel safe in the workplace due to COVID-19.

If you have any questions about these changes or how they impact your business, please contact:

• Jeremy S. Cole
• Caroline J. Berdzik
• Peter J. Woo
• Or another member of our Employment and Labor practice