The pandemic had a shattering effect on all aspects of our lives, including the way that we worked. Some employees faced temporary or permanent closure of their employer, while others found themselves challenged by working from home. Still others had to navigate the tension between doing their job, satisfying their employers, and protecting themselves, their customers, and their coworkers, from the virus. A recent decision by a New Jersey judge makes clear that the law protects employees whose responses to COVID-19 resulted in adverse work actions.

The case involved John Hollibaugh, who was hired to manage a Woodbridge, New Jersey restaurant. While still training for the position, Hollibaugh learned that he’d worked closely with a co-worker who tested positive for COVID-19. Though his own test for the virus came back negative, he was advised to retest in four days, and his manager took him off of the work schedule for that period of time and told him to return after he’d received a second negative test result. On August 30th, the day that he got his second negative result, he also received a first dose of the Pfizer vaccine for COVID-19.

Mr. Hollibaugh returned to work on September 2nd, but nine days later was again exposed to an employee experiencing COVID-19 symptoms: this time it was his manager, James Kromphold. He also experienced symptoms that day, but despite a fever, body aches, headaches, and other issues, his COVID-19 test results were negative. Two days later, on September 13th, he told his manager that he was still experiencing symptoms and that despite testing negative for the virus he was going to stay home from work.

He returned to work on September 20th and received his second dose of the Pfizer vaccine the next day. The following day he experienced a fever, and upon calling in to work to inform them of his symptom he was told to stay home. On the same day, his fever broke and he reported to work, but was fired three days later.

Mr. Hollibaugh filed a lawsuit against the restaurant and others, accusing them of wrongful termination, and his former employer responded by filing a motion to have the case dismissed. Superior Court Judge Christopher Rafano heard the case and denied the restaurant’s motion, noting that the fired employee had sufficiently shown that his employer had violated several laws, including New Jersey’s Law Against Discrimination, the Conscientious Employee Protection Act, and other previously established precedents surrounding mandates on public policy.

The key question answered in the case was whether the firing was in conflict with either a law or a policy mandate surrounding the virus, and specifically whether Mr. Hollibaugh believed himself required legally and ethically to remain in quarantine in order to protect the public and his colleagues. The victim asserted – and the judge signaled agreement based on his orders to move forward — that firing him violated public policy, with the judge writing, “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.”

The judge went a step further, indicating that Hollibaugh might also have been a victim of retaliation for engaging in a protected activity, which would be a violation of the Conscientious Employee Protection Act. Key to the idea that he was fired as an act of retaliation is the fact that his firing only occurred after his return to work. Notably, the judge pointed out that the link between the protected activity and his termination did not need to be the only reason for Hollibaugh’s having been fired for him to prove his case.

Though we are returning to a sense of normalcy, many New Jersey employees may have been victims of adverse workplace actions related to COVID-19. If this happened to you, you may still come forward to seek justice. If you would like to discuss your situation, contact us today to learn how we can help.


You can read the full opinion of the court here.