A former marketing director has filed a lawsuit against a New Jersey nursing home operator and claims he was not allowed to return to work after battling COVID-19, despite having medical clearance. The marketing director alleges that his termination was either retaliation for using disability leave while he battled COVID-19 or discrimination based on the perception that that he was still positive for COVID-19.
The marketing director claims that he was asked to work as a nurse at the facility where there were active cases of COVID-19. He objected to working as a nurse to the director of nursing on the grounds that his nursing license had expired, personal protective equipment was not being provided, and he cares for his elderly immunosuppressed father. On April 3, 2020, he tested positive for COVID-19 and took a medical leave of absence.
On May 15, 2020, after he recovered from COVID-19, he sent an email to his supervisor requesting to return to work and to work remotely to avoid reinfection and to keep his father safe. The supervisor replied that he could not work remotely but could take time off under Family and Medical Leave Act (FMLA) to protect his father. Due to financial difficulties, the marketing director got medical clearance to return to work at the facility. Upon his return, he was sent home on the grounds that he was not approved to return to work. Later, his email account was terminated, and he received no response to multiple job status inquiries.
The marketing director is seeking compensatory damages; lost pay, wages and benefits, and damages for mental distress; punitive damages; and attorney fees. The complaint states that the “Plaintiff was the subject of a retaliatory termination in violation of the Conscientious Employee Protection Act and the New Jersey Law Against Discrimination.”
Issue
Discrimination and retaliation are prohibited in the workplace. When an employee has medical clearance to return to work, the company is obligated to accept the medical clearance. When there are concerns about an employee returning to work after an illness or injury, human resources should be contacted immediately. While federal law prohibits discrimination in the workplace, most states have enacted their own additional laws regarding workplace discrimination. It is essential that administration and human resources are aware of their state-specific laws.
Discussion
- Review your policies and procedures for prevention of discrimination and retaliation. Ensure that your state’s laws for discrimination are included in the policies and procedures. Update policies as needed.
- Train staff about their rights to be free from discrimination and retaliation in the workplace. Teach staff to report any concerns of discrimination or retaliation to their immediate supervisor, the administrator, human resources, the compliance and ethics officer, or through the facility’s hotline.
- Periodically audit by anonymously polling staff to determine if they may be experiencing discrimination or retaliation in the workplace, or if they have observed it happening to others. In addition, ensure that all staff are aware of how to report any concerns of discrimination or retaliation.
