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I had a recent discussion in relation to an upcoming COVID-19 webinar with former Supervising Judge of Compensation, Ray. A. Farrington, who sat in Hackensack, N.J. Judge Farrington raised an important question about what employers can do when employees ignore safety rules concerning COVID-19 in respect to both workers’ compensation and employment law.
Suppose an employer has a strict requirement that an employee must wear a mask at work to protect the employee and others. Suppose further that one employee repeatedly ignores the rule and eventually becomes sick with coronavirus and then brings a workers’ compensation claim. Is there a valid defense to the claim based on the employee’s willful failure wear his mask?
The answer is yes, if the employer complied with the terms of N.J.S.A. 34:15-7. That provision states that the willful failure to make use of a reasonable and proper personal protective device furnished by the employer is grounds for denial of the workers’ compensation claim if the employer has clearly made this a requirement of the employment and has uniformly enforced this rule. For this defense to work, the employer has to properly document that despite repeated warnings, the employee willfully failed to properly and effectively utilize the protective device, and that conduct led to the work illness, in this case the virus.
A second question in this scenario is whether the employer can terminate someone who fails to utilize required protective devices. As Judge Farrington posed the question: “Can the employer have a zero tolerance policy?” For the answer we turn to Ralph Smith, Esq., Co-Chair of Capehart’s labor law department. Ralph responded, “If you are a non-union employer, firing under a zero tolerance policy for a lack of mask use would no doubt be allowed because failing to follow such a directive would be insubordination, and insubordination is subject to discipline, including possible discharge.” He added, “Progressive discipline would be unnecessary unless the employer has a policy where progression is required, though most employers carve out from progressive discipline serious workplace infractions.” Ralph added that given the risks of COVID 19, not wearing a mask could have serious health consequences for others and should be considered a serious infraction.
The answer is more nuanced if the employer is in a unionized setting. Ralph explained, “I would think that discipline would be an issue which would have to be addressed with the union, it being considered a term and condition of employment, but if you already have a CBA (Collective Bargaining Agreement) with a progressive discipline policy, you would need to follow that and likely would not be able to go directly to termination.” Ralph suggested that in a union setting it would be wise to discuss the employer’s plans involving mask usage with the union. He added, “Unions have the same safety incentive as employers do, so I suspect the employer would not get very much pushback on requiring mask usage and disciplining for non-use, short of termination for a first violation.”
Finally, Ralph made an important point about reasonable accommodations. “In both union and non-union contexts, an employer might have to accommodate someone who refuses to wear a mask, or is unable to do so, because of health reasons. This is an exception even under Governor Murphy’s Executive Orders.” He added that the employer may need to address whatever the underlying disability is which precludes mask use just as the employer would for any disability. The question becomes whether the employer can make adjustments that accommodate the health problem and still maintains a safe working environment.
Thanks to Judge Farrington and Ralph Smith, Esq. for their contributions to this blog.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.