Blowing the COVID-19 Whistle: NJ Court Finds Whistleblower Protections for Workers Disclosing COVID-19 Symptoms

Three years later, the courts continue to grapple with COVID-19 employment-related claims. On February 3, 2023, the Superior Court of New Jersey in Middlesex County issued a critical ruling wherein it determined that New Jersey’s Conscientious Employee Protection Act (CEPA) extends protections to employees suffering COVID-19 symptoms. 

The plaintiff, John Hollibaugh, had been exposed to COVID-19 and was experiencing symptoms. Based upon the advice he received from his health care provider, together with CDC guidelines, Hollibaugh quarantined until his symptoms subsided. Hollibaugh subsequently advised his employer that he would be unable to report to work until he had completed the CDC recommended quarantine period. In response, his employer directed him to immediately report to work. Hollibaugh refused to comply, and his employer terminated his employment.

Hollibaugh sued his employer and the executives purportedly responsible for his termination, claiming unlawful retaliation and retaliatory termination in violation of the CEPA. Similar to whistleblower laws in other states, CEPA protects and encourages employees to report illegal or unethical activities in the workplace. In order to successfully state a claim, a plaintiff must allege facts to demonstrate: (1) the plaintiff reasonably believed that the employer’s conduct violated a law, a regulation or a clear mandate of public policy; (2) the plaintiff performed a “whistle-blowing activity” as defined by the CEPA, such as objecting to or refusing to participate in an activity or practice which the employee reasonably believes is in violation of a law, or rule or regulation; (3) an adverse employment action has been taken against the employee; and (4) the whistle-blowing activity caused such adverse employment action. 

In its denial of the employer’s Motion to Dismiss, the New Jersey Superior Court effectively ruled that an employee who quarantines due to COVID-19 symptoms is afforded whistleblower protections under the CEPA. In its memorandum opinion, the Court noted that Hollibaugh adequately pled that he had a reasonable belief that the Company’s request for him to report to work instead of quarantining violated a law or clear mandate of public policy. In determining whether COVID-19 quarantine and supporting CDC guidance constituted a “law or clear mandate of public policy,” the Court examined all of the COVID-19 related legislation, executive orders, mandatory guidelines, and global, federal and state public policy mandates. Since Hollibaugh adequately pled that his employer terminated his employment because he refused to comply with what he believed to be an unlawful directive, the court determined that Hollibaugh adequately pled a viable cause of action under the CEPA. 

Although the litigation remains in its early stages, this ruling adds to the growing body of employee friendly jurisprudence in a state that already possesses some of the most comprehensive statutory whistleblower protections in the country. In 2020, another New Jersey Court similarly allowed a plaintiff to proceed with a lawsuit against his former employer under the CEPA following his alleged termination in retaliation for expressing concerns about COVID-19 related worker safety. The ruling in that case suggested protections for employees who complain about feeling unsafe in the workplace due to a lack of COVID-19 precautions. In 2021, a District Court in New Jersey interpreting the CEPA found, similar to the case discussed in this advisory, that refusing to work because of COVID-19 exposure or symptoms may be protected as whistleblowing under the Act.

Buchanan continues to monitor the COVID-19 legal landscape and is equipped to provide guidance in navigating the frequent changes including state or local differences in this area of the law. We encourage you to contact us with any questions or assistance regarding COVID-19 vaccine mandates.