NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4980-11T2
JUNE G. VALENT,
Appellant,
APPROVED FOR PUBLICATION
v. June 5,2014
BOARD OF REVIEW, DEPARTMENT APPELLATE DIVISION
OF LABOR and HACKETTSTOWN
COMMUNITY HOSPITAL,
Respondents.
___________________________________
Submitted September 18, 2013 – Decided June 5, 2014
Before Judges Fuentes, Simonelli and Haas.
On appeal from the Board of Review,
Department of Labor, Docket No. 321,223.
June G. Valent, appellant pro se.
John J. Hoffman, Acting Attorney General,
attorney for respondent Board of Review
(Lewis A. Scheindlin, Assistant Attorney
General, of counsel; Lisa N. Lackay, Deputy
Attorney General, on the brief.)
Hackettstown Community Hospital has not
filed a brief.
The opinion of the court was delivered by
FUENTES, P.J.A.D.
June G. Valent appeals from the decision of the Board of
Review denying her application for unemployment compensation
benefits. The Board found appellant was not entitled to
unemployment benefits from January 2, 2011 to February 26, 2011,
because her employer established she engaged in what the Board
characterized as "simple misconduct connected to the work" under
N.J.S.A. 43:21-5(b). We reverse. Appellant's employer did not
prove appellant committed misconduct by refusing to submit to
the flu vaccination policy for purely secular reasons. The
Board's decision upholding appellant's termination
unconstitutionally discriminated against appellant's freedom of
expression by improperly endorsing the employer's religion-based
exemption to the flu vaccination policy and rejecting the
secular choice proffered by appellant.
I
The facts underlying this appeal are undisputed. Appellant
was a registered nurse employed by Hackettstown Community
Hospital (HCH). She started working as a nurse at HCH on a
full-time basis on May 11, 2009. Effective September 21, 2010,
Adventist Health Care, Inc., the corporate owners of HCH, issued
a policy in its "Corporate Policy Manual" titled "Health Care
Worker Flu Prevention Plan." The purpose of the policy was to
enhance "health care worker vaccination rates and prevent[] the
spread of the flu during the flu season or pandemic, to
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patients, residents, [healthcare workers] and their families, as
well as the community."
Participation with the flu vaccination directive was
mandatory
unless there [was] a documented medical or
religious exemption. For those with an
exemption, a declination form must be signed
and accompanied with an appropriate note
each year. In addition, regardless of where
[employees] work, for those who must decline
the flu vaccine, it will be mandatory to
properly wear a facemask (available at the
facility) during the entire flu season, to
be determined by [employer] based on [Center
for Disease Control] guidelines. Failure to
comply with this policy will result in
progressive discipline up to and including
termination.
[(Emphasis added).]
Appellant refused to be vaccinated for the flu. In
communicating her decision not to take the flu vaccine,
appellant did not allege an exemption based on medical or
religious reasons. She did agree, however, to wear a mask
during flu season, as specifically authorized by the employer's
policy for those who seek a religious-based exemption. Despite
this concession, HCH terminated appellant's employment as a
nurse based on her refusal to be vaccinated against the flu,
presumably based on purely secular personal reasons, since
appellant did not claim a religious-based exemption.
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The deputy claims examiner found appellant eligible for
unemployment compensation benefits. The employer appealed. The
Appeal Tribunal reversed the deputy claims examiner's decision
after a telephonic hearing in which appellant did not
participate. On appellant's appeal, the Board reversed and
remanded the matter to the Appeal Tribunal to give appellant the
opportunity to participate in the hearing.
The Appeal Tribunal conducted another telephonic hearing;
this time both appellant and her employer participated. The
Appeal Tribunal reversed its earlier ruling and found appellant
eligible to receive unemployment compensation benefits. After
reviewing the relevant regulatory standards, the Appeal Tribunal
held as follows:
In this case, the employer elected to
separate the claimant from employment
because she would not take a flu
vaccination. The claimant's preference not
to take a vaccine for her own personal
health convictions simply did not
demonstrate a willful disregard or neglect
of the employer, as the claimant
demonstrated an intent to otherwise
reconcile the matter. The claimant offered
to wear a mask. Furthermore, the employer
permitted employees to work without the
vaccine provided they wear a mask and have a
letter from a spiritual leader, namely a
non[-]medical professional, which further
buttresses the Tribunal's conclusion that
the claimant was not discharged for
misconduct connected to the work.
Ultimately, the claimant was discharged for
reasons which do not constitute misconduct
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in connection with the work and no
disqualification for benefits arises under
N.J.S.A. 43:21-5(b). The employer has not
presented evidence sufficient to disturb the
determination of the Deputy that the
claimant was otherwise eligible for benefits
from 01/02/11; therefore, those findings
will not be disturbed.
[(Emphasis added).]
Acting on the employer's appeal, the Board reversed finding
appellant violated the employer's flu vaccination policy.
Although the Board recognized that appellant agreed to wear a
mask, as specifically provided for in the policy, the Board
found "she failed to provide the required documentation."
(Emphasis added). Although, as the Appeal Tribunal correctly
noted, the employer's vaccination policy exempted employees for
medically unrelated reasons as long as they provided religion-
based documentation, the Board found appellant "continued to
refuse getting vaccinated despite her own doctor's disagreeing
with her decision and refusing to give her medical
documentation."
Under these circumstances, the Board found "the employer's
policy requiring employees to be vaccinated was not
unreasonable." The Board concluded appellant was thus
disqualified to receive unemployment compensation benefits for
the period between January 2, 2011 through February 26, 2011,
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based on "simple misconduct connected to the work in accordance
with N.J.S.A. 43:21-5(b)."
II
Our standard of review of a decision made by a State
administrative agency is well-settled.
An administrative agency's final quasi-
judicial decision will be sustained unless
there is a clear showing that it is
arbitrary, capricious, or unreasonable, or
that it lacks fair support in the record.
Three channels of inquiry inform the
appellate review function: (1) whether the
agency's action violates express or implied
legislative policies, that is, did the
agency follow the law; (2) whether the
record contains substantial evidence to
support the findings on which the agency
based its action; and (3) whether in
applying the legislative policies to the
facts, the agency clearly erred in reaching
a conclusion that could not reasonably have
been made on a showing of the relevant
factors.
[In re Herrmann, 192 N.J. 19, 27-28 (2007)
(internal citations omitted).]
We are bound to defer to an administrative agency's decision
that adheres to these standards because of the agency's
expertise and superior knowledge in the field. Id. at 28.
Appellant argues HCH did not establish grounds to terminate
her employment because she complied with all of the material
provisions of the flu vaccination policy. Appellant also argues
the Board's endorsement of the employer's flu vaccination policy
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that contains a religious-based exemption violated her
constitutionally protected right to freedom of expression under
the First Amendment of the Constitution of the United States.
Finally, appellant argues her refusal to be vaccinated under
these circumstances was an isolated incident of minor
significance and does not warrant a seven-week disqualification
of her unemployment benefits.
We agree with appellant and reverse. Based on the evidence
presented, the Board's decision finding appellant disqualified
for unemployment benefits for simple misconduct under N.J.S.A.
43:21-5(b), based exclusively on her refusal to comply with her
employer's flu vaccination policy, is arbitrary, capricious, and
unreasonable. The net outcome of the Board's ruling
unconstitutionally violated appellant's freedom of expression by
endorsing the employer's religion-based exemption to its flu
vaccination policy.
By exempting employees who can produce religion-based
documentation, the employer's flu vaccination policy is clearly
not exclusively driven by health-related concerns. The Board
cannot therefore accept the policy as a proper basis to find
appellant committed an act of insubordination of sufficient
magnitude to render her disqualified for unemployment
compensation benefits under N.J.S.A. 43:21-5(b).
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N.J.A.C. 12:17-10.6 describes the standard for denying
unemployment compensation benefits when the applicant is
discharged or suspended for insubordination or violation of an
employer's rule. The regulation provides as follows:
(a) An individual shall be considered to
have been discharged for an act of
misconduct where it is established that he
or she has committed an act of misconduct as
defined in N.J.A.C. 12:17-10.2 and met one
of the following:
1. Refused without good cause to comply with
instructions from the employer, which were
lawful, reasonable, and did not require the
individual to perform services beyond the
scope of his or her customary job duties;
2. Acted beyond the expressed or implied
authority granted to the individual by the
employer; or
3. Violated a reasonable rule of the
employer which the individual knew or should
have known was in effect.
[N.J.A.C. 12:17-10.6.]
N.J.A.C. 12:17-10.2 defines "misconduct" as follows:
(a) For an act to constitute misconduct, it
must be improper, intentional, connected
with one's work, malicious, and within the
individual's control, and is either a
deliberate violation of the employer's rules
or a disregard of standards of behavior
which the employer has the right to expect
of an employee.
(b) To sustain disqualification under this
section, the burden of proof is on the
employer to show that the employee's actions
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constitute misconduct. However, in the case
of gross misconduct, the following apply:
1. Where an employer provides sufficient
evidence to establish that a claimant was
discharged for gross misconduct connected
with the work, prosecution or conviction
shall not be required to sustain that the
claimant has engaged in gross misconduct.
2. If an individual has been convicted of a
crime of the first, second, third or fourth
degree under the New Jersey Code of Criminal
Justice, N.J.S.A. 2C:1-1 et seq., in a court
of competent jurisdiction, such conviction
shall be conclusive as to a finding of gross
misconduct.
(c) "Connected with the work" means not only
misconduct that occurs in the course of
employment during working hours, but
includes any conduct which occurs after
working hours or off the employer's premises
where there is substantial evidence that the
conduct adversely impacts the employer or
the individual's ability to perform the
duties of his or her job.
[(Emphasis added).]
Against these standards, the Appeal Tribunal originally
found appellant's employer had not sustained its burden of
proving appellant's refusal to abide by its flu vaccination
policy constituted "misconduct connected with the work." We
agree with the findings and analysis of the Appeal Tribunal.
The religion-based exemption irrefutably illustrates that the
flu vaccination policy is not based exclusively on public health
concerns because an employee claiming an exemption is only
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required to sign a form attesting to his or her faith-based
reason for refusing to be vaccinated, "accompanied with an
appropriate note" from a religious leader. These requirements
are facially unrelated to public health issues, patient safety
concerns, or scientifically valid reasons for the containment of
the flu virus. The religion exemption merely discriminates
against an employee's right to refuse to be vaccinated based
only on purely secular reasons.
Our Supreme Court has clearly cautioned that "[g]overnment
may not, under the First Amendment, prefer one religion over
another or religion over non-religion but must remain neutral on
both scores." Marsa v. Wernik, 86 N.J. 232, 245 (1981) (citing
Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 216, 83
S. Ct. 1560, 1568, 10 L. Ed. 2d 844, 855 (1963)). Under these
circumstances, by denying appellant's application to receive
unemployment benefits based only on her unwillingness to submit
to the employer's religion-based policy, the Board violated
appellant's rights under the First Amendment.
The record is uncontroverted that the employer did not
produce evidence showing appellant's refusal to comply with its
flu vaccination policy for purely secular reasons adversely
impacted the hospital or otherwise undermined appellant's
ability to perform her job as a nurse. Thus, the employer did
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not prove appellant was guilty of misconduct within the meaning
of N.J.A.C. 12:17-10.2(c).
Reversed.
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