Katherine Napolitano

The COVID-19 pandemic has hurt businesses like never before. Early on in the pandemic, state governments shut down non-essential retail establishments and many businesses in the service industry, such as restaurants and bars. In recent months, New Jersey Governor Murphy has lifted the majority of the restrictive measures due to the highly effective COVID-19 vaccine and treatments.   

Nevertheless, both state and federal governments continue to emphasize the ongoing need to protect employees and patrons in the service industry, especially in bars and restaurants. Unfortunately, not all businesses are complying with these precautions leaving employees and their families at risk for contracting the virus.  If you work at a restaurant and are concerned about your safety, McOmber McOmber & Luber P.C. has compiled the following information for you.   

Are Bars and Restaurants Required to Maintain Strict COVID-19 Protocols?  

No. Under Executive Order 243, New Jersey no longer requires bars and restaurants to implement strict COVID-19 protection measures.  Masks are no longer required and facilities can now operate at full capacity without regard to six feet of distance between tables or bar seats.  

Dance floors, indoor bar seating, buffets and self-service food stations, and ancillary activities such as karaoke and standing service are now all permitted. 

What Should Bars and Restaurants Do To Keep Employees Safe? 

To stop the spread of COVID-19 and keep employees and customers safe, restaurants and bars are encouraged to require masks indoors if individuals are not vaccinated. In addition, while no longer required, businesses are encouraged to provide sanitation materials to employees free of charge and provide employees sufficient break time to practice hand hygiene.  

It is recommended that employers continue to conduct daily health checks of its employees, such as temperature screenings and symptom checking consistent with CDC guidance. If employees are sick, they should be encouraged to stay home. Employers should continue to notify employees promptly of any known exposure to COVID-19. 

The New Jersey Department of Health has released additional safety recommendations for indoor and outdoor dining that can be found here. 

Can I Still Wear My Mask at Work? 

Yes. Even though New Jersey no longer requires employees to wear masks in bars and restaurants, employers are prohibited from restricting them from doing so and cannot penalize or retaliate against them for making this choice. Executive Order 243. 

What Do I Do If My Employer is Not Taking Safety Precautions?  

If you believe your employer is not following proper safety measures, you can file a complaint with the New Jersey Department of Labor and Workforce Development (DOLW) and OSHA.  The State has also set up a COVID-19 Information Hub that allows you to file a complaint for COVID-19 violations.  You can find that form here.  

Your employer cannot retaliate against you for filing a complaint pursuant to the New Jersey’s Conscientious Employee Protection Act (CEPA) as well as other state and federal laws.   

 

Healthcare workers say that speaking out about the critical needs and conditions at their facilities is the only way to compel change and save lives. However, it has cost some their jobs. If you have been discharged from your position during the COVID-19 pandemic, you may have a claim for wrongful termination.

A Duty to Inform Other Healthcare Workers

One Los Angeles nurse, Jhonna Porter, felt a duty to alert her co-workers to a seemingly dangerous change on the fifth floor of their hospital. With little notice, the hospital’s administration had converted the floor into a COVID-19 unit.

“The rumors are true,” the Ms. Porter wrote in a private Facebook group used by the floor’s staff. “Be careful.” A few days later, she posted a request for donations on her personal Facebook page. Her floor, which usually operated as a cardiac floor, was ill-equipped to deal with COVID-19 patients. The healthcare workers on the newly-converted COVID-19 floor were not being provided with adequate personal protective equipment (“PPE”). Ms. Porter stated in the post on her personal Facebook page “I’m physically ill from the mental stress. I need anything I can get.”

Within hours of the post, the hospital’s administration called Ms. Porter in for a meeting. An attorney for the hospital accused her of violating patient privacy laws, and the hospital suspended Ms. Porter without pay while it investigated.

Healthcare Facilities Receive Backlash

This move by the healthcare facility, of course, backfired. Because of the public relations wildfire that ensued, Ms. Porter’s facility reinstated her.

However, this is hardly an isolated incident. Healthcare facilities across the country are threatening front-line healthcare workers with retribution for speaking out about PPE shortages or working conditions. Healthcare workers across the country say that administrations have created policies that order employees not to speak with reporters. Some include explicit threats of discipline, while others do not.

Hospital administrators often allege that they are acting to protect patient privacy rights under the Health Insurance Portability and Accountability Act (“HIPAA”). However, HIPAA is not an issue. HIPAA’s privacy laws prohibit disclosing specific patient information. HIPAA does not bar disclosure of general working conditions. The disclosures being made by heathcare workers are not HIPAA violations. Healthcare workers say that the disclosures are their best hope for pressuring the “decision-makers” at their facilities to make changes to improve hospital conditions and save lives.

Are you a Heathcare Worker? Know Your Rights

If you have been retaliated against or terminated for speaking up about unsafe work conditions, you have certain rights. It is against the law for an employer to retaliate against an employee for exercising a protected right. While healthcare facilities have faced uncharted territory with respect to COVID-19, retaliation and termination of employees who speak out about safety concerns are not appropriate.

Forms of Retaliation

Some examples of retaliatory actions include termination, discipline, demotion, and harassment. If a negative employment action is based on the fact that an employee engaged in a legally protected activity, it can be violative of the employee’s rights. It is illegal to retaliate against employees who speak out about unsafe working conditions, such as lack of PPE, amid the COVID-19 pandemic.

Protection From Retaliation

Whistleblowers are employees who voice concerns about unsafe work conditions. These workers are shielded from wrongful discharge by the New Jersey Conscientious Employee Protection Act (CEPA).

Employees who shed light on wrongdoing by their employer are protected under state and federal law, and can receive reinstatement to their position, back pay and in some cases a portion of whatever funds government officials recoup from the offending employer.You are also entitled to file a whistleblower complaint if a negative employment action was taken against you for raising a health and safety concern.

At the law offices of McOmber McOmber & Luber, we want to say thank you to all essential workers right now, including the healthcare workers who are risking their own lives during this pandemic. If you need help seeking benefits or navigating your rights as an employee, our legal team can serve you.

Employment Attorneys At McOmber McOmber & Luber, P.C. Advocate On Behalf Of COVID-19 Workers

Our passionate employment law attorneys understand that we are living in an unprecedented time and that for all workers, especially those who are on the frontlines of the COVID-19 pandemic, anxiety, fear, and frustration are all very real. If you are a healthcare worker, we want to reassure you that you have certain rights during this time and that you cannot be retaliated against for filing a complaint. The attorneys at McOmber McOmber & Luber, P.C. take a proactive approach to each and every legal issue our clients face. Please call our Red Bank office at 732-842-6500, our Newark office at 973-878-9040, our Marlton office at 856-985-9800, OR contact us at 888-396-0736 or online for a free consultation. We represent clients throughout New Jersey.

During this unprecedented time, non-essential workers have been asked to work remotely, and those who cannot do so have had their positions of employment suspended. While staying home is certainly the safest thing that people can do right now, especially those who are at increased risk of severe infection; there are some jobs that simply cannot be performed from home. Consider the following about who is considered an essential worker during the COVID-19 crisis, risks these workers face, and what to do if you are an essential worker who needs legal counsel.

Who is Essential During the COVID-19 Pandemic?

The list of who is considered “essential” during this pandemic is long, but can be divided into categories. These categories include:

• Healthcare and public health workers, including nurses, doctors, psychologists, hospital and laboratory personnel, workers conducting critical research, and more;
• Law enforcement, public safety, and first responders, including police officers, firefighters, private security, search and rescue personnel, and more;
• Food and agriculture workers, such as farmers, food distributors, food packers, grocery store workers, workers supporting grocery store and other food operations, restaurant carry-out/takeaway workers, food manufacturer employees, and more;
• Energy workers, including workers in the electricity industry, petroleum industry, and natural gas and propane gas industries; and
• Financial services workers, including those responsible for clearing financial transactions.

The above list is not inclusive; many other classes of workers and industries have been classified as essential, but the above categories comprise the majority of workers.

Risks to Essential Employees

Essential employees who are being asked to work right now, oftentimes in direct contact with other people, face a number of serious risks. These risks include:

• The risk of contracting the coronavirus and suffering severe health consequences, including death, as a result;
• The risk of contracting the virus and passing it on to another person, including a loved family member or friend;
• Mental health risks due to increased job demands, stress, depression, and fear;
• Risks of retaliation if workers state that they do not want to work, are unhappy about workplace safety standards, or need to stay home to care for themselves or a loved one;
• Increased risk of injury for workers who are working more hours or performing tasks outside of their usual job duties (e.g. the risk of a repetitive strain injury to a grocery store worker who must now assist with unloading and unloading due to a worker shortage) and
• Risk of lost wages/economic harm if workers choose not to work.

Do You Have Questions About Your Legal Rights as an Essential Working During the Coronavirus Pandemic?

If you have questions about your legal rights, are unsure what protections are available to you, or have been retaliated against by your employer in regards to an action you took in response to coronavirus, please do not hesitate to call our experienced employee rights attorneys at the law office of McOmer McOmber & Luber. We appreciate you and your work during this time of crisis and want to help make sure you understand your rights. Call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, our Newark office at 973-878-9040, or contact us at 888-396-0736 or online for a free consultation.