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By: Chantal N. Guerriero, Esq. and Ty Hyderally Esq.

Along with these particularly uncertain times facing the American workforce will undoubtedly come a flood of questions from both employees and employers on how to proceed. For employees in particular who may reasonably believe that they are violating the law by going into work during the COVID-19 outbreak, New Jersey law, examined in light of Governor Murphy’s Execute Order No. 107 (the “Order 107”), may offer helpful guidance.

On March 21, 2020, Governor Murphy signed his latest Executive Order 107, which listed the “essential businesses” permitted to remain at least partially open and operating in New Jersey during the COVID-19 outbreak. These businesses, include but are not limited to Grocery and food supply stores, pharmacies, hardware and home improvement stores, pet stores, and liquor stores. On the other hand, “nonessential businesses,” which are required to close under Order 107 include, but are not limited to, recreational and entertainment operations like casinos, racetracks, gyms, indoor portions of shopping malls, and personal care facilities like spas and nail salons which inherently render it impossible to adhere to social distancing rules. These non-essential businesses are ordered to remain closed for as long as Order 107 remains in effect.

In between, are other businesses and non-profits not mentioned on the list of essential or nonessential businesses that have “employees that cannot perform their functions via telework or work-from-home arrangements.” Such businesses may include, but are not limited to, law firms, courthouses, certain warehouses, and restaurants. Order 107 expressly requires such businesses and not-for-profit entities in the State of New Jersey, whether closed or open to the public, to “make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue.” Importantly, Order 107 also requires these businesses to “accommodate their workforce, wherever practicable, for telework or work-from-home arrangements.”  Order 107 lists examples for certain jobs which inherently require employees to by physically present and thus cannot be modified for remote work:

  • law enforcement officers,
  • fire fighters, and other first responders,
  • cashiers or store clerks,
  • construction workers,
  • utility workers,
  • repair workers,
  • warehouse workers,
  • lab researchers,
  • information technology maintenance workers,
  • janitorial and custodial staff, and
  • certain administrative staff.

While enforcement guidance may still be underway, Order 107 makes clear that wherever possible and feasible through technology, certain employees must be permitted to work remotely. This means that certain qualifying employees who refuse to go to work in-office because they object to their employer’s violation of Order 107 and are thereafter retaliated against by their employers may have a claim under the New Jersey Conscientious Employee Protection Act, N.J. Stat. § 34:19-1, et. seq. also known as “CEPA” or the “Whistleblower Act.” CEPA makes it unlawful for employers to retaliate against employees for objecting to what the employee reasonably believes is a violation of the law or public policy. Retaliation can come in many forms, but will generally include negativity or hostility from an employer without any justification. The underlying reason for such retaliation must be because of the employee’s complaints of their employee’s perceived legal violation.

Those who are unsure of what category of employment they fall under and who experience retaliation from their employers after the enactment of Order 107 should consult with legal counsel in order to understand their potential rights and remedies under the law.

This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.

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