New Jersey court's COVID ruling will have profound influence on workplace lawsuits
The decision is the first time a New Jersey judge has put such extensive workplace protections for COVID-19 symptoms in a written opinion.
In a case of first impression, a judge in Middlesex County, New Jersey, Superior Court has ruled that an employee who takes leave due to COVID-19 symptoms is protected under New Jersey’s whistleblower and anti-discrimination laws as well as public policy mandates.
The decision is the first time a New Jersey judge has put such extensive workplace protections for COVID-19 symptoms in a written opinion, according to plaintiff counsel Christopher Eibeler of Smith Eibeler in Holmdel.
Superior Court Judge Christopher Rafano denied a motion by a Woodbridge restaurant operator to dismiss a wrongful-termination suit by John Hollibaugh, who missed several days of work when he developed COVID-19 symptoms.
Rafano ruled that Hollibaugh made a sufficient showing that the defendant restaurant operator violated New Jersey’s Law Against Discrimination, the Conscientious Employee Protection Act and case law proscribing violations of public policy mandates.
The decision goes beyond the scope of a ruling from November 2020, Loeb v. Vantage Custom Classics, which allowed a plaintiff to proceed with a whistleblower suit related to COVID, said Eibeler.
The ruling would allow the case to proceed toward trial, Eibeler said, adding: ”I’m pretty confident I’m going to prove the facts. They’re not really in dispute.”
Hollibaugh was hired to manage a Woodbridge restaurant called Jose Tejas and was undergoing training when a co-worker he had worked closely with tested positive for COVID-19.
On Aug. 26, 2021, Hollibaugh had a COVID-19 test that came back negative, but was advised that he should be retested in four days because the first test might not be accurate, according to court papers.
The manager, James Kromphold, took Hollibaugh off the schedule for four days and told him to return when he got a second negative test result, according to court documents.
On Aug. 30, Hollibaugh had a second negative test result. The same day, he received his first dose of the Pfizer vaccine for COVID-19 and he returned to work on Sept. 2.
Then, on Sept. 11, a day after he worked closely with Kromphold, Hollibaugh learned that Kromphold was experiencing COVID-19 symptoms.
Later that day, at work, Hollibaugh developed a fever of 102 degrees, body aches, headaches, a sore throat, nausea and dizziness. Hollibaugh had another COVID-19 test, but again tested negative.
On Sept. 13, Hollibaugh notified Kromphold that he tested negative for COVID but was still experiencing symptoms and, therefore, chose to stay home. He returned to work on Sept. 20. The next day, he had his second dosage of the Pfizer vaccine, and on Sept. 22 experienced a fever. He called the restaurant and was instructed to take the day off. His fever soon broke and he returned to work, but a few days later he was dismissed from his job. Nearly a year later, in September 2022, Hollibaugh filed a lawsuit against Jose Tejas and several individuals.
Lawyers from Jackson Lewis, representing Jose Tejas and Border Cafe of Woodbridge, moved to dismiss.
Whistleblower
Rafano ruled that Hollibaugh reasonably believed the Jose Tejas managers’ conduct violated a law, regulation or clear mandate of public policy, based on all the laws, executive orders and policy mandates concerning COVID-19.
For example, Hollibaugh reasonably believed that he was required to quarantine until his symptoms subsided, and that the defendants’ requirement that he return to work before his symptoms subsided constitutes unlawful conduct in violation of laws, rules or mandates of public policy, Rafano ruled.
In addition, Hollibaugh believed that he had contracted COVID-19, that he might be contagious, that he had a legal and ethical obligation to quarantine, and that reporting to work would be in violation of the rules, would constitute improper customer service or be incompatible with a clear mandate of public policy, Rafano wrote.
In addition, Rafano wrote that Hollibaugh pleaded sufficient facts to establish that he engaged in whistleblowing activity as defined by the Conscientious Employee Protection Act, and that Jose Tejas terminated him in retaliation for that protected activity. It was only after his symptoms subsided and he was able to return to work that the defendants told him he was terminated, the judge said.
“The court finds that plaintiff pleaded more than enough competent evidence to survive a motion to dismiss under New Jersey’s liberal standard. As our Supreme Court has instructed, a reviewing court must ‘search the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim.’” Rafano wrote.
Rafano also found that Hollibaugh “pleaded a causal nexus between his exercise of an established right grounded in public policy and his termination,” meeting the standard established by the Supreme Court in its 1980 decision Pierce v. Ortho Pharmaceutical. In that case, the court said that an at-will employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy.
“In this case, this court finds that plaintiff has also pleaded a causal nexus between his exercise of an established right grounded in public policy and his termination,” Rafano said.
Rafano also found that the LAD applies because the employee showed a link between his protected activity and the employer’s retaliatory action. The employee does not have to show that the protected activity was the sole reason for the employer’s actions, but only that the protected activity motivated the employer in some way, Rafano said.
“Here, the court is satisfied there is a connection, as plaintiff was fired within days of informing his employer that he was once again experiencing COVID-19 symptoms,” Rafano wrote.
Jackson Lewis’ Amanda Miller in Berkeley Heights, representing Jose Tejas, declined to comment on the ruling.
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