NJ’s ‘right to refuse to return to work’ rules unveiled as businesses reopen statewide (updated)

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The Murphy administration on Thursday unveiled what it called the ‘right to refuse to return to work’—a way to protect millions of people employed in the state from working conditions where they could be stricken with COVID-19.

With thousands of retail shops and restaurants slated to reopen on Monday – and nail and hair salons, gyms and outdoor recreation in the near future – many of the more than 1.2 million New Jersey residents on unemployment could be called back to work. While the pandemic has slowed down in the state in terms of new cases, hospitalizations and fatalities, those same metrics have been on the rise across the country, prompting fears about a second wave of the virus. So what if employers do not adhere to sanitization and health guidelines, and workers do not feel that the business is making an effort to guard against COVID-19?

Under the guidelines that the state’s labor department unveiled on Thursday, those workers could quit or refuse work and still qualify for unemployment benefits.

“[O]ur laws make clear where a worker raises substantial health and safety concerns, and the employer fails to remedy such concerns, that worker may lawfully refuse to return to work and continue collecting [unemployment] benefits,” New Jersey Labor Commissioner Robert Asaro-Angelo said at Gov. Phil Murphy’s daily COVID-19 press briefing Thursday afternoon at the Trenton War Memorial.

Under state law, unemployment benefits are reserved for those unable to work “through no fault of their own.” And the current system is built for, and encourages, claimants to actively look for a job.

But the spread of the virus has meant exceptions. At least tens of thousands of workers ended up working at “essential” businesses during the height of the pandemic in April, ranging from grocery stores to pharmacies.

“No one should be forced to choose between their livelihood and the threat of contracting COVID-19,” Asaro-Angelo added.

Thursday’s guidelines make a worker eligible for unemployment if they quit or refuse a job offer, or the recall to their place of work prior to pandemic-related shutdowns out of fear of unsafe working conditions, specifically, if efforts were lax to prevent the spread of the virus within the establishment, and between customers and employees.

The worker would have to show that “working conditions are so unsafe, unhealthful, or dangerous as to constitute good cause attributable to such work,” according to the guidelines.

“This determination is highly fact-specific and it is not easily met,” the labor commissioner said.

Simple dissatisfaction with the working conditions would not be enough, and they’d have to be at a level that the worker would be left with “no choice but to leave the employment.” And even then, the worker has to try and address it with their employer.

The labor department would look at things such as whether the business provides personal protective equipment like masks, if there’s an infectious disease response plan, if there are handwashing stations, if employees have the option to work from home and if surfaces are frequently cleaned.

Labor officials would also look at whether the business followed the recommendations and guidelines from Murphy’s executive orders, and government agencies such as the New Jersey Department of Health, the Centers for Disease Control and Prevention, and the Occupational Safety and Health Administration.

Under the guidelines detailed Thursday, workers who’ve left their job or refused an offer because they’ve been directly affected by the COVID-19 virus and don’t feel safe at the workplace would not be eligible for state unemployment benefits. Rather, they would be able to claim benefits under the Pandemic Unemployment Assistance program, a federal expansion for the unemployment fund, enacted under the Coronavirus Aid, Relief and Economic Security Act, or CARES Act.

That includes workers who’ve been diagnosed with COVID-19 or shown symptoms of the virus, those who have a household member diagnosed with the virus, those caring for a family member diagnosed with the virus, those who have to care for a child whose daycare or school was closed because of the public health emergency, and those who’ve been advised to self-quarantine.

Pact work

The question of how to reopen businesses on the one hand while protecting the health of employees and customers, and on the other hand, making sure business owners are not subject to an onslaught of legal actions are playing out both on the state and national level.

On Thursday, Murphy unveiled what he called “One Jersey Pledge,” which he described as “a pact between businesses and consumers and employers and employees. And vice versa.”

“By putting it in your window … you’re accepting your responsibility between you and your customers, and between you and your employees,” the governor added. “So that when you go in there, you know you’ve got to wear a face covering etc. as a customer or an employee.”

But progressive activist coalition Make the Road New Jersey, which very often backs Murphy, tore into his announcement, worrying that these pledges come with no teeth to enforce and ensure they’re followed.

“The One Jersey pledge is a completely insufficient measure to protect the health of workers, their families and the public,” reads the organization’s statement. “Pledges only go so far as the commitment to enforce them.”

Editor’s note: A previous version of this article incorrectly and inadvertently referred to New Jersey’s “right to work” laws, instead of “right to refuse to return to work” laws; it was updated at 4:49 p.m. EST on June 12, 2020.