By Jennifer Vorih, Esq., Ty Hyderally, Esq.

Montclair, and the rest of New Jersey, has now entered Stage 2 of Reopening.  This means that salons and barber shops were allowed to reopen this week.  Additionally, restaurants were formally allowed to offer outdoor dining throughout Montclair, as of last week. Daycare centers are also allowed to operate again.

With the relief of reopening and the possibility of finding our new normal in Montclair, come some concerns for employees, as well.

Indoor, non-essential retail operations were allowed to restart as of June 15. For many retail workers, a return to some semblance of normalcy and the return of regular paychecks may bring with them additional responsibilities. In other areas of the country which reopened earlier than New Jersey, retail workers have found themselves enforcing policies requiring customers and employees to observe social distancing and wear face coverings. We hope that we will not see in Montclair, scenes which occurred across the country recently, of customers refusing to wear face masks and even becoming violent when asked to do so.  Retail workers generally did not sign up for handling such customers, and may not be prepared to do so.  However, they should know that they have legal rights and protections if they are retaliated against for speaking up about illegal actions. See The Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. (“CEPA”).  Under CEPA, employees have protection against retaliation in numerous workplace situations.

Other employees in Montclair may be worried about the safety of their employers’ actions in allowing in too many customers at a time, or seating customers too close together, or not ensuring that their employees observe social distancing and wear face coverings. Such concerns are of paramount significance right now.  Nonetheless, many employees may fear retaliation for expressing their concerns to their employers.  Montclair employees can find some guidance about these issues online from the Occupational Safety and Health Administration (“OSHA”), at https://www.osha.gov/Publications/OSHA4045.pdf.  OSHA notes that its “Guidance on Returning to Work” does not create any new legal obligations, but provides recommendations only.  It also recommends that employers continually monitor government guidelines regarding COVID-19 transmission, mitigation measures, and best practices for disinfection and ensuring the safety of employees.  Workers may also want to review Governor Murphy’s Executive Orders regarding COVID-19 and work-related issues.

In addition to concerns over being required to enforce new policies, and/or their employers failing to take adequate actions to protect the health and safety of employees and customers, some Montclair employees have valid concerns that returning to work may put at risk their own health or the health of their loved ones. Employees who have a medical condition, such as diabetes, which puts them at a higher risk of serious complications or death from COVID-19, may be able to request a reasonable accommodation of being allowed to not return to the workplace, as long as it does not place an undue hardship on their employer. These rights are found under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (disability discrimination/retaliation).  However, Montclair employees who are simply concerned about getting COVID-19, but do not have a medical condition or disability, are in a more difficult position, as are employees who are concerned about exposing their families to the coronavirus.  These employees may not have recourse, if their employers insist that they return to work.  However, employees in Montclair and the rest of New Jersey should keep in mind that under the State’s “Road Back: Restoring Economic Health through Public Health,” all workers who can work from home should continue to do so throughout Stage 2 and even Stage 3. More information and a synopsis of New Jersey’s reopening plan can be found online, at http://d31hzlhk6di2h5.cloudfront.net/20200518/ff/c9/8c/41/1917eaf623c02595b9225209/Strategic_Restart_Plan.jpg.

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